Alcock v Commonwealth of Australia [2009] FCA 1252

Alcock v Commonwealth of Australia [2009] FCA 1252

The Court refused to adjourn the respondents' summary dismissal motions because the removal application was made only on 28 October 2009, after the amended statement of claim and after the respondents' motions had been made returnable; respondents could have been notified earlier; a removal application under s 40 of the Judiciary Act 1903 (Cth) did not prevent the Federal Court from considering the motions; and the matter could be advanced by hearing argument on the sufficiency of the amended statement of claim, with any need for further response accommodated by written submissions and, if necessary, a further opportunity to address them.

Jurisdiction
Australia
Judgment Date
30 October 2009
Procedural Posture
Federal Court Proceeding Involving Respondents' Motions for Summary Dismissal Under S 31 a of the Federal Court of Australia Act 1976 (cth) / Interlocutory Hearing Concerning Whether to Adjourn the Respondents' Motions Pending a High Court Removal Application
Outcome
The motions were not adjourned; the Court proceeded with the hearing and made directions for written submissions and a further hearing.
Legal Topics
['adjournment' 'summary Dismissal' 'removal to the High Court' 'interlocutory Motions']
['civil Procedure' 'federal Jurisdiction'] ['adjournment' 'summary Dismissal' 'removal to the High Court' 'interlocutory Motions']

Case Brief

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Procedural Posture

Federal Court Proceeding Involving Respondents' Motions for Summary Dismissal Under S 31 a of the Federal Court of Australia Act 1976 (cth) / Interlocutory Hearing Concerning Whether to Adjourn the Respondents' Motions Pending a High Court Removal Application

Legal Issues

  1. 1 ["Whether the hearing of the respondents' summary dismissal motions should be adjourned until after the applicant's High Court application for removal under s 40 of the Judiciary Act 1903 (Cth)." 'Whether the making of a removal application under s 40 of the Judiciary Act 1903 (Cth) precluded the Federal Court from proceeding with interlocutory or final issues in the proceeding.']

Ratio Decidendi

The Court refused to adjourn the respondents' summary dismissal motions because the removal application was made only on 28 October 2009, after the amended statement of claim and after the respondents' motions had been made returnable; respondents could have been notified earlier; a removal application under s 40 of the Judiciary Act 1903 (Cth) did not prevent the Federal Court from considering the motions; and the matter could be advanced by hearing argument on the sufficiency of the amended statement of claim, with any need for further response accommodated by written submissions and, if necessary, a further opportunity to address them.

Court Disposition

The motions were not adjourned; the Court proceeded with the hearing and made directions for written submissions and a further hearing.

Orders

  • ['The applicant file and serve by 4 December 2009 all written submissions on which he wishes to rely in response to the written submissions respectively filed on 26 October 2009 on behalf of the first respondent and on 27 October 2009 on behalf of the second respondent, and the oral submissions made this day on...