- In certain circumstances, a single judge of appeal has jurisdiction to exercise the powers of the Court of Appeal. This is seen to occur on routine applications that are made prior to a substantive hearing, such as an application for a stay of orders under appeal,[1] or an application for security for costs of the appeal.[2]
- It can usually be anticipated that, even where a party requires leave to bring a civil appeal, a Court constituted by three judges[3] will determine the question of leave together with the appeal itself (if leave is granted). However, there is also scope for a single judge of appeal exercising the powers of the Court of Appeal to make an order dismissing an application for leave to appeal. This article briefly considers that jurisdiction in a civil context, and the right to review an order made within it.
What can a single judge of appeal determine?
- The Court of Appeal was created by the Supreme Court of Queensland Act 1991 (Qld) (Supreme Court Act). Its first hearings occurred on 28 January 1992.[4] The Court of Appeal was afforded jurisdiction to hear and determine all matters that a Full Court of the Supreme Court of Queensland had jurisdiction to determine.[5] The Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the Court, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act.[6]
- Powers of the Court of Appeal that may be exercised by a judge of appeal alone are found in section 44(1) and (2) of the Supreme Court Act.[7] Section 44 empowers a judge of appeal to exercise the powers of the Court of Appeal to (among other things):
- dismiss an appeal for want of prosecution;[8]
- strike out a notice of appeal where the appeal has been improperly instituted;[9] and
- strike out a notice of appeal where there has been a failure to comply with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) as to its contents.[10]
- In addition to what is expressly prescribed in section 44 of the Supreme Court Act, pursuant to section 30(4) of the Supreme Court Act “a rule of court may provide that the jurisdiction and powers of the Court of Appeal may, in particular kinds of proceedings, be exercised by fewer than 3 judges of appeal”.
- Rule 767 of the UCPR permits a judge of appeal to exercise the powers of the Court of Appeal in certain proceedings. Those proceedings include:
- a proceeding about a question of practice and procedure in the Court of Appeal;
- an application in a civil proceeding for leave to appeal or for an extension of time to apply for leave to appeal;[11]
- an application for a stay of execution or for an injunction pending an appeal; and
- an appeal listed for hearing under rule 764, which concerns consent orders.
- To this end, where a prospective appellant in a civil proceeding requires leave to appeal to the Court of Appeal, the application for leave could be heard and determined by a single judge of appeal. This includes, for example, an application for leave to appeal a decision of the District Court of Queensland pursuant to section 118(3) of the District Court of Queensland Act 1967 (Qld). Pursuant to section 118(7) of that Act, a single judge of the Court of Appeal may grant (with or without condition) or refuse leave to appeal. A single judge of appeal may also decide whether there is a right of appeal under section 118 summarily without hearing evidence.[12]
A potentially different position in QCAT
- The answer is not so clear in respect of applications for leave to appeal decisions of the Appeal Division of the Queensland Civil and Administrative Tribunal. In Brisbane City Council v Newton,[13] Holmes JA (as her Honour then was) heard the respondent’s application to strike out the applicant’s application for leave to appeal. It was submitted that her Honour had jurisdiction to do so as a judge of appeal exercising the powers of the Court of Appeal, relying on section 44(2)(a) of the Supreme Court Act, which empowers a judge of appeal to exercise the powers of the Court of Appeal to make an order concerning the institution of an appeal. In the alternative, the respondent sought that her Honour dismiss the application for leave to appeal, relying on rule 767(b) of the UCPR as conferring the requisite jurisdiction to do so.
- Her Honour accepted that she did have jurisdiction to strike out the applicant’s application for leave under section 44(2)(a) of the Supreme Court Act, but concluded that the application had not been improperly instituted so as to exercise the power. As to the respondent’s alternative argument, her Honour expressed concern as to her jurisdiction under rule 767(b) to entertain the application as a single judge of appeal in the following way:
I have some concerns, which I’ve explored with counsel, as to whether the reference in r 767(b) to “an application in a civil proceeding for leave to appeal” extends to an application which arises out of proceedings in the Queensland Civil and Administrative Tribunal. Section 3(1) of the Uniform Civil Procedure Rules makes the rules applicable to civil proceedings in the Magistrates, District and Supreme Court, and the rules dealing with the commencement and carriage of proceedings refer to proceedings commenced in those courts.
On one view, the expression in r 767(b) would seem to envisage an application which arises from an existing proceeding in the District or Supreme Court. There is also the question of whether, if r 767(b) were as broadly construed as the Council contends, any work would be left to r 766(3)(c), which permits the court’s jurisdiction and powers to be exercised by two or more Judges of Appeal in applications for leave to appeal in any other matter.
Mr Webster, for the Council, mounted a fairly compelling argument to the contrary. He pointed out that r 745 of the Uniform Civil Procedure Rules applied Pt 1 of ch 18 to appeals to the Court of Appeal from a variety of matters, in a broader range than civil proceedings in the Magistrates, District and Supreme Court.
This application, he argued, could be distinguished from the other matters referred to in r 766(3)(c) because it is a minor civil dispute, and, thus, can be characterised as a civil proceeding. There would still be work for r 766(3)(b) in relation to other matters emanating from the Queensland Civil and Administrative Tribunal, for example.
- Her Honour found it unnecessary to resolve the question as to her jurisdiction to dismiss leave to appeal under rule 767(b). Her Honour identified that to dismiss leave herself would be to “depart from the existing practice of the court of sitting a bench of three to hear applications for leave to appeal and, usually, where leave is granted, also resolving the appeal itself”. Her Honour concluded:
I’ve set out the arguments which I presently can see for and against the existence of a jurisdiction in me, as a single Judge, to deal with the leave application on its merits. I do not propose to resolve them because I think there are practical reasons against my embarking as a single Judge, on the determination of this application, contrary to the court’s usual practice.
Can the decision of the single judge of appeal be appealed?
- An applicant whose application for leave to appeal has been dismissed by a judge of appeal has no avenue to appeal that decision to a Court of Appeal constituted by three judges.[14] There is, however, an avenue for an applicant to review that decision of a single judge of appeal, pursuant to section 44(4) of the Supreme Court Act, which provides as follows:[15]
The Court of Appeal may discharge or vary—
(a) a judgment given by a judge of appeal; or
(b) an order made or direction given by a judge of appeal.
- Absent the Court granting such relief, the decision of the single judge of appeal is deemed to be a decision of the Court.[16]
- The nature of the review on an application to discharge or vary does not appear to be settled. It has only been raised in 2 decision of the Court of Appeal, the first of those was in Di Iorio v Wagener,[17] in 2016.
- In Di Iorio, Gotterson JA (Philippides JA and Henry J agreeing) embarked on a review of interstate decisions, in particular those of the New South Wales Court of Appeal,[18] in seeking to identify the approach taken in those jurisdictions as it concerned the nature of the review of a decision of a single judge of appeal. His Honour did so in the absence of legal argument from the parties to the application, as they were both litigants in person. It is unnecessary to repeat Gotterson JA’s analysis of the relevant decisions in this article,[19] but attention is directed to paragraphs [19] to [25] of his Honour’s reasons.
- After considering the interstate authorities, Gotterson JA concluded, in order for the application to discharge or vary the Court was then faced with[20] to succeed, the applicant was required to demonstrate, on the part of the judge of appeal:[21]
…an error of law, a material error of fact, a failure to take into account a material consideration, the taking into account of an irrelevant consideration, or unreasonableness in the House v The King[22] sense. (citation added)
- The second and most recent published decision of the Court of Appeal dealing with this question was Young v Crime and Corruption Commission[23] in 2018.[24] In that case, the applicant was again a litigant in person. In the circumstances, the Court of Appeal did not revisit the question of the nature of the review, and instead cited the principle in Di Iorio expressed above and proceeded on that basis.
- It is possible that the nature of the review may vary depending on the nature of the issues raised.[25] In Di Iorio, Gotterson JA identified that the various formulations adopted by different judges in New South Wales were varied, but there was a commonality in them.[26] In 2017, the New South Wales Court of Appeal revisited the nature of the review in Pi v Zhou.[27] In that case, Basten JA took the view that the formulations of the nature of the review are varied, and that the continued approach should be that the nature of the review is determined in each case, based on “the nature of the judgment sought to be varied or discharged and the circumstances in which the application is made”.[28] His Honour was of the view that there was “merit in not seeking a universally applicable principle to be imposed on the language of the section”.[29]
- However, Payne JA, as the other member of the majority in Zhou, did not take the same approach. His Honour simply said:[30]
…The applicant for review must show that there has been a material error of law or fact or a disregard of material considerations in the exercise of the power or that the decision was plainly unreasonable and therefore wrong.
- The most recent articulation of the nature of the review on an application to discharge or vary a decision of a judge of appeal appears to have been expressed in Fokas v Mansfield,[31] where the New South Wales Court of Appeal (Basten, Meagher and Payne JJA) said:[32]
…It has been generally accepted that the applicant for review must show that, in the decision sought to be reviewed, there has been a material error of law or fact, a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong…It is possible that the approach to such a review may vary depending on the nature of the issues raised…Even if a less constrained view were taken of the powers potentially available on such a review, no different conclusion would be reached in relation to the matters addressed below…(citations omitted)
When must an application to vary or discharge be brought?
- Unless the Court of Appeal orders otherwise, pursuant to rule 748 of the UCPR, a notice of appeal must be filed within 28 days after the date of the decision appealed from.
- However, there is no time limit imposed for making an application under section 44(4) of the Supreme Court Act to discharge or vary the decision of a judge of appeal.[33] The case in New South Wales is different. By rule 51.58 of the Uniform Civil Procedure Rules 2005 (NSW), subject to an order of the Court extending time, an application to the Court for the variation or discharge of an order of a judge of appeal must be made on notice of motion filed within 14 days after the date on which the order is made.
- In these circumstances, Gotterson JA (Philippides JA and Henry J agreeing) said in Di Iorio:[34]
In my view, it would be appropriate for there to be, in Queensland, a time limit for making applications under s 44(4). I respectfully suggest that consideration be given to that. Such a measure would appropriately give effect to the philosophy of proceeding with matters in an expeditious way and avoiding undue delay. (citation omitted)
- Although no view is expressed on the issue, the lack of a limitation on time for filing an application to discharge of vary does raise the possibility of an applicant who, out of time to apply for special leave to appeal a decision of a single judge of appeal, instead, applies to the Court of Appeal to discharge or vary that decision, and, thereafter, applies for special leave (if necessary) against that decision of the Court of Appeal (within time).
- In the absence of a limitation on time, if the Court of Appeal ultimately took the view that the nature of the review on an application to discharge or vary was not constrained, and depended on the nature of the application, it may well be open for the Court to consider the length of time within which it has taken the applicant to bring the application, as a factor in reviewing the decision of a judge of appeal.
[1] Pursuant to rule 761(2) of the Uniform Civil Procedure Rules 1999 (Qld). See also Perovich & Anor v ASIC [2005] QCA 456 at [4] per McPherson JA, which concerned an application for a stay of enforcement of a decision that was not subject to an appeal, but was subject only to an application for leave to appeal which had not yet been granted. Consider also OCNR (Australia) Pty Ltd v Convergence Team Pty Ltd [2014] QCA 28 at [4] per Gotterson JA.
[2] See also paragraph 50 of the Court of Appeal Practice Direction 3 of 2013. The jurisdiction also extends to an application for a stay of orders made by the Court of Appeal pending the determination of an application for special leave: Bernstrom v National Australia Bank Ltd [2002] QCA 309 per McMurdo P. Compare Mbuzi v Hall & Ors [2010] QCA 23 per Chesterman JA.
[3] I note those rare occasions since the Court of Appeal’s creation where the Court has been constituted by 5 judges: eg R v Morrison [1999] 1 Qd R 397 (Fitzgerald P, Davies, Pincus JJA, Williams and Fryberg JJ); Schiliro v Peppercorn Childcare Centres Pty Ltd (No. 2) [2001] 1 Qd R 518 (McMurdo P, Pincus, Davies, Thomas JJA and Helman J); I & L Securities P/L v HTW Valuers (Bne) P/L [2000] QCA 383 (McPherson, Pincus, Thomas JJA, Moynihan SJA and Atkinson J); R v Lacey; ex-parte A-G (Qld) [2009] QCA 274 (de Jersey CJ, McMurdo P, Keane, Muir and Chesterman JJA). These decisions were identified by the Honourable Justice Margaret A McMurdo AC, in ‘Ceremonial Sittings’, Recognising 25 years of the Queensland Court of Appeal, 3 February 2017, Banco Court, Supreme Court of Queensland.
[4] The Honourable Justice Margaret A McMurdo AC, ‘Ceremonial Sittings’, Recognising 25 years of the Queensland Court of Appeal, 3 February 2017, Banco Court, Supreme Court of Queensland.
[5] Section 29(1) of the Supreme Court Act.
[6] Section 29(3) of the Supreme Court Act.
[7] Although outside the scope of this article, see the regime in the Federal Court at section 25(2B) of the Federal Court of Australia Act 1976 (Cth); Nyoni v Pharmacy Board of Australia [2018] FCA 1707 at [20] and [28] per McKerracher J.
[8] Section 44(1)(b) of the Supreme Court Act. See for example Orrcon Pty Ltd v Spacerack Pty Ltd & Ors [2004] QCA 130 per McMurdo P; Di Carlo v Dubois & Ors [2007] QCA 196 per McMurdo P.
[9] McElligott v McElligott [2014] QCA 54 per Holmes JA (as her Honour then was), relying on section 44(2)(a) of the Supreme Court Act. See also Mathews v Legal Services Commissioner & Anor [2016] QCA 22 per Fraser JA; Sharples v O’Shea & Hanson [2002] QCA 200 per McMurdo P; paragraphs 6(4) and 25 of the Court of Appeal Practice Direction 3 of 2013.
[10] Young v Crime and Corruption Commission [2018] QCA 55 per Sofronoff P, relying on sections 44(1)(b) and (2)(b) of the Supreme Court Act.
[11] Examples of where an application for an extension of time was determined by a judge of appeal include St Clair v Timtalla Pty Ltd [2010] QCA 304 per McMurdo P, and Giffin v Telstra Corporation Limited & Anor [2018] QCA 335 per Sofronoff P.
[12] Section 118(4) and (7) of the District Court of Queensland Act 1967 (Qld).
[13] [2014] QCA 337.
[14] ASIC v Neolido Holdings Pty Ltd [2006] QCA 266 at [72] per Keane JA (Williams and Holmes JJA agreeing); Di Iorio v Wagener [2016] QCA 346 at [16] per Gotterson JA (Philippides JA and Henry J agreeing).
[15] Di Iorio v Wagener [2016] QCA 346 at [15] per Gotterson JA (Philippides JA and Henry J agreeing).
[16] Section 44(5) of the Supreme Court Act; Di Iorio v Wagener [2016] QCA 346 at [15] per Gotterson JA (Philippides JA and Henry J agreeing).
[17] [2016] QCA 346.
[18] Which had been followed in Victoria: see Apidopoulos v Sheriff of Victoria (2000) 1 VR 476.
[19] The starting point being Wentworth v Wentworth (1994) 35 NSWLR 726.
[20] His Honour premised the principle by reference to “On this appeal” at [28].
[21] Di Iorio v Wagener [2016] QCA 346 at [28] per Gotterson JA (Philippides JA and Henry J agreeing); Young v Crime and Corruption Commission [2018] QCA 264 per Gotterson JA (McMurdo JA and Bowskill J agreeing).
[22] (1936) 55 CLR 499.
[23] [2018] QCA 264 per Gotterson JA (McMurdo JA and Bowskill J agreeing).
[24] I also note the decision of Fraser JA in Re Bradley [2017] QCA 66, where his Honour, as a single judge of appeal, struck out a notice of appeal that was filed under a new file number, but in effect sought to review an earlier decision of a single judge of appeal striking out an earlier notice of appeal as not compliant with rule 747(1)(b) of the UCPR, and dismissing that appeal.
[25] Fokas v Mansfield [2017] NSWCA 315 at [22] to [23] per Basten, Meagher and Payne JJA.
[26] At [24].
[27] [2017] NSWCA 16.
[28] At [3] to [5], citing a previous judgment of his Honour in Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417 at [33] to [34].
[29] At [6].
[30] At [49].
[31] [2017] NSWCA 315.
[32] At [22] to [23].
[33] Di Iorio v Wagener [2016] QCA 346 at [29] per Gotterson JA (Philippides JA and Henry J agreeing).
[34] [2016] QCA 346 at [31].