Applicant Opposes Appellate Court's Order
Fierro & Fierro (No 2) [2022] FedCFamC1A 114 (25 July 2022)
The Appeal Registrar rejected an Application in an Appeal for filing. The applicant seeks that an order made in the appellate jurisdiction be varied or set aside. The Court, in determining its ruling, relied upon the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Facts:
On 8 July 2022, the applicant’s application for leave to appeal out of time from an order made on 22 April 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1) was dismissed. The applicant is dissatisfied with the decision. On 13 July 2022, he tried to file an Application in an Appeal (supported by an affidavit sworn and submissions prepared by him) seeking that the order made on 8 July 2022 be set aside or varied.
In the accompanying written submissions, however, the applicant reveals the real nature of his claim for relief to be this: The applicant seeks an order that the order of 8 July 2022 is set aside and the matter is listed for hearing by the Full Court to determine the jurisdictional issue. The Appeal Registrar refused to accept the documents for filing.
In a following chain of emails, the applicant asserted his broader reliance upon rr 10.12, 10.13(1)(c), 10.13(1)(h), and 10.14(a) of the Rules to set aside the order made on 8 July 2022, but he still apparently harbours an expectation that the Full Court will correct the error of which he complains. The Appeal Registrar held fast, confirming on 15 July 2022 that the Application in an Appeal would not be accepted for filing. That prompted the applicant to file another Application in an Appeal on 20 July 2022 seeking a review of the Appeal Registrar’s decision.
The review entails a de novo decision about whether to accept and file the first Application in an Appeal, seeking to set aside or vary the decision made on 8 July 2022.
Issue:
Whether or not the orders sought by the applicant should be granted.
Applicable law:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32 - provides for the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1).
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 55 - provides that an appeal must not be brought directly to the High Court from a judgment of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) in the exercise of its appellate jurisdiction.
Analysis:
While the applicant disagrees with the decision to refuse him leave to appeal, contrary to his anticipation, there is no recourse to the Full Court to contest that decision because appellate jurisdiction is now spent. Nor is there any recourse to the High Court of Australia for special leave to appeal from the judgment of 8 July 2022, as it was a decision to refuse an application for an extension of time within which to institute an appeal from the order made on 22 April 2022 (ss 32(2)(a) and 55(3)(a) of the FCFCA Act).
Conclusion:
The Application in an Appeal filed on 20 July 2022 is dismissed.
