Alcock v Commonwealth of Australia [2012] FCA 870

Alcock v Commonwealth of Australia [2012] FCA 870

Leave to appeal was granted on the basis that the answers to the separate questions effectively determined the substantive rights of the applicant and a refusal of leave could cause substantial injustice, especially as the proceeding would effectively be terminated without a chance for substantive appellate review. The adopted procedure contemplated an appeal, and the applicant undertook not to amend the relevant pleading, removing uncertainty regarding dispositive effect. The threshold for sufficient doubt was met in circumstances where the appropriate process was itself in issue and where the statutory scheme and issues raised were complex and arguable.

Jurisdiction
Australia
Judgment Date
01 August 2012
Procedural Posture
Application for Leave to Appeal From Interlocutory Judgment / Leave to Appeal Granted
Outcome
Leave to appeal granted
Legal Topics
['leave to Appeal' 'interlocutory Orders' 'acquisition of Property (s 51(xxxi))' 'marine Parks and Fisheries Regulation' 'preliminary/separate Questions' 'strike Out Applications' 'compensation Under Statutory Schemes']
['practice and Procedure' 'constitutional Law' 'administrative Law'] ['leave to Appeal' 'interlocutory Orders' 'acquisition of Property (s 51(xxxi))' 'marine Parks and Fisheries Regulation' 'preliminary/separate Questions' 'strike Out Applications' 'compensation Under Statutory Schemes']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Judgment / Leave to Appeal Granted

Legal Issues

  1. 1 ['Whether the decision below was attended by sufficient doubt to warrant reconsideration' 'Whether refusal to grant leave to appeal would cause substantial injustice to the applicant' "Whether the property identified constituted 'property' within s 51(xxxi) of the Constitution" "Whether legislation and arrangements cited amounted to 'acquisition of property' for constitutional purposes" 'Whether there was inconsistency between State and Commonwealth legislation under s 109 of the Constitution' "Whether Commonwealth conduct alleged was 'in trade or commerce' within fair trading/consumer law"]

Ratio Decidendi

Leave to appeal was granted on the basis that the answers to the separate questions effectively determined the substantive rights of the applicant and a refusal of leave could cause substantial injustice, especially as the proceeding would effectively be terminated without a chance for substantive appellate review. The adopted procedure contemplated an appeal, and the applicant undertook not to amend the relevant pleading, removing uncertainty regarding dispositive effect. The threshold for sufficient doubt was met in circumstances where the appropriate process was itself in issue and where the statutory scheme and issues raised were complex and arguable.

Court Disposition

Leave to appeal granted

Orders

  • ['The applicant has leave to appeal from the judgment of Tracey J given on 24 May 2012 at Melbourne.' 'Costs be reserved to the Full Court in the appeal.']