A.S. P.A. & P. MacFarlane & Anor v Northern Territory Government of Australia & Ors [2006] HCATrans 692 (14 December 2006)

--

A.S. P.A. & P. MacFarlane & Anor v Northern Territory Government of Australia & Ors [2006] HCATrans 692 (14 December 2006)

Last Updated: 22 December 2006

[2006] HCATrans 692

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D2 of 2005

B e t w e e n -

A.S. P.A. & P. MacFARLANE

First Applicants

A.S. MacFARLANE

Second Applicant

and

NORTHERN TERRITORY GOVERNMENT OF AUSTRALIA

First Respondent

COMMONWEALTH BANK

Second Respondent

RETIRED TRUSTEE DECKANA PTY LTD RECEIVERS AND MANAGERS FOR COMMONWEALTH BANK (FERGUSON NORSE AND COATES)

Third Respondent

NT SALT PTY LTD

Fourth Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 DECEMBER 2006, AT 9.34 AM

Copyright in the High Court of Australia

__________________

KIRBY J: For reasons published on 6 March 2006, Southwood J, in the Supreme Court of the Northern Territory, in Deckana Pty Ltd as Trustee of the A and P MacFarlane Family Trust v Northern Territory of Australia, dismissed a purported appeal to the Court of Appeal of the Northern Territory on the basis that it was incompetent or, alternatively, frivolous, vexatious, an abuse of process or proceedings which did not disclose a ground of appeal and having prospects for success.

In his reasons, Southwood J stated that he was exercising the appellate jurisdiction of the Supreme Court of the Northern Territory. By s 52 of the Supreme Court Act (NT) it is provided that ordinarily the appellate jurisdiction of the Court “shall be exercised by the Court constituted by not less than 3 judges”. However, it is also provided, in s 52(2)(b), that one judge, sitting in court, may exercise the appellate jurisdiction to dismiss an appeal for a “proscribed cause”. The only “proscribed cause” that might be relevant in this case is that of incompetence. See Supreme Court Rules, Rule 84.16(1) and 84.16(2). Southwood J concluded that he had the power, as a single judge, to dismiss the applicants’ purported appeal to the Court of Appeal on the ground that it was incompetent. Alternatively, he concluded that he could do so within the general powers conferred on a single judge to exercise the appellate jurisdiction of the Supreme Court “in all matters of practice and procedure”. (See Supreme Court Act, ss 52(2)(b) and 52(3)(b)).

The essential foundation for the order of Southwood J was that the proceedings in the Court of Appeal purported to be an appeal from a judgment of Riley J, given in the Supreme Court of the Northern Territory. That order, in turn, had dismissed proceedings in the Supreme Court at first instance. By those proceedings, Mr A S MacFarlane, who has represented himself, purportedly on behalf of Deckana Pty Ltd and others, had sought specified relief. Specifically, he had asked that four proceedings be “transferred” from the Supreme Court of the Northern Territory to this Court. Thus, the relief sought before Riley J was procedural in nature. On 19 January 2005, Riley J dismissed the originating motion to this effect. He concluded that the proceeding was misconceived and bound to fail; that three of the four proceedings had been effectively resolved; and that, in any event, the Supreme Court probably had no power to “transfer” any of the proceedings to another jurisdiction, namely this Court. The last conclusion is clearly right. Alone, it warranted Riley J’s order of dismissal.

There was no appeal as of right against the procedural order of Southwood J. An appeal only lay by leave of the Court of Appeal. Therefore, Southwood J was correct to conclude that Mr MacFarlane’s purported appeal as of right was incompetent and liable to be struck out on that basis. Correctly, he affirmed that the “transfer” of the Supreme Court proceedings, as sought by the applicants, would “defeat the appellate process of the Court of Appeal and of the High Court of Australia” (Reasons of Southwood J, par [62]).

In these circumstances, the orders made by Southwood J, terminating the purported “appeal”, were correct. The application, now before this Court, by A S, P A and P MacFarlane and A S MacFarlane for special leave to appeal to this Court have no prospects of success. It follows that the application for special leave to appeal to this Court must be dismissed.

There is some discordancy between the named parties in the process before Riley J and Southwood J, and the parties named in the application for special leave to appeal to this Court. However, confining attention to the process commenced in this Court, it is obviously misconceived and doomed to fail.

The applicants, in their written arguments, raised a number of points, including suggested constitutional points, which appear to relate to the compulsory acquisition of property by the Northern Territory of Australia. Such points would only arise if there was before the Court an application for special leave from an order or judgment of the Supreme Court of the Northern Territory or the Court of Appeal of the Northern Territory engaging this Court’s appellate jurisdiction, in which arguable error was shown. Because of the procedural history of the matter, described above, there is no such error. The application therefore fails.

Because the applicants are unrepresented, this application for special leave falls to be dealt with in accordance with Rule 41.10 of the High Court Rules 2004. Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing this application. I publish that disposition signed by Callinan J and myself.

AT 9.38 AM THE MATTER WAS CONCLUDED