Adrian Allan Warner v Elders Rural Finance Limited

[1992] FCA 1097

JUDGMENT NO. we!m,94a2*e J m.2D~..

. FOR LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1
1 No. NQ 109 of 1992
GENERAL DIVISION

BETWEEN :

ADRIAN ALLAN WARNER & ANOR.

Applicants

AND	ELDERS RURAL FINANCE LTD &.
A W L
Respondents

CORAM :	Beaumont J.
DATE :	7 October 1992
PLACE :	Brisbane

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The fifth respondent have leave to pay the sum of $6,220 [being the proceeds of the sale of a quantity of sheep] into court under the notice of deposit procedure.

2. Conditional upon the payment of the sum of $6,220 being made into Court, the 5th respondent be dismissed from the proceedings.

3. All questions of costs in that connection be reserved.

4. Time for making of the applicants' application for leave to appeal be extended up to and including 8 October 1992.

5. The applicants be granted leave to appeal from the order of Cooper J on 23 September that the notice of motion for interlocutory relief filed by Mr and Mrs Warner be dismissed with costs.

6. The present amended statement of claim dated 23 September 1992 be struck out.

7. The Court grants to the applicants leave to appeal from to-day's order of the Court striking out the amended statement of claim.

8.   Liberty be reserved to the applicants to replead if so advised (within 21 days) . The operation of this order is to be suspended for a period of three months from to- day.

9. The Court grants leave to the respondents to cross-appeal from the Court's order granting to the applicants leave to replead if so advised.

10.  The costs in the applications for leave to appeal and to cross-appeal from the Court's decisions be costs in the appeal.

11.  The respondentsf costs of the application to strike out the amended statement of claim be paid by the applicants.

12.  The respondents have liberty to tax the costs referred to in order 11, notwithstanding that the principal proceedings have not concluded; however, the operation of this order be suspended for a period of three months.

13.  The aspect of the notice of motion concerning the dismissal or stay of the applicants' action be adjourned to a date to be fixed.

14.  The fourth respondent be dismissed from the proceedings, reserving all questions as to costs in this regard.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
QUEENSLAND DISTRICT REGISTRY	1 No. QG 109 of 1992
)
GENERAL DIVISION	1

BETWEEN:

ADRIAN ALLAN WARNER & ANOR.

Applicants

AND	ELDERS RURAL FINANCE LTD &
m*
Respondents

CORAM :	Beaumont J.
DATE :	7 October 1992
PLACE :	Brisbane

EX TEMPORE REASONS FOR JUDGMENT

There are before the court two interlocutory applications. The first is an application on behalf of Mr and Mrs Warner for leave to appeal from an order made by Cooper J on 23 September 1992 that a notice of motion by Mr and Mrs Warner for interlocutory injunctions be refused. At the time of making that order his Honour gave ex tempore reasons for judgment in which he said, at page 10, that he was "not persuaded that the applicants have made out a serious question to be tried. His Honour went on to say that it was therefore not necessary for him to deal with the question of the balance of convenience.

In his reasons, Cooper J set out the relevant

allegations made in the amended statement of claim then before

him in draft form, but which document has now been filed as an

amended statement of claim. The point sought to be raised in the pleading, and in respect of which Cooper J has found that there was no serious question to be tried, has been dealt with by other members of the court in striking out pleadings which, although different in form in some respects, appear to raise essentially the same question of principle. I refer to a judgment of French J in Fisher v Westwac Bankina Corworation, No. WA G81/92, 18 August 1992, unreported, and a decision of Spender J in Nawier v National Australia Bank Limited, No. QG8/92, 9 September 1992, unreported. In both matters, as I have said, pleadings were struck out on the footing that no reasonable course of action was disclosed.

This application for leave to appeal is one day out of time, but in the circumstances I order that the time for making this application be extended up to and including tomorrow, 8 October 1992.

In the circumstances of this case, namely where at the interlocutory stage a judge at first instance has held that no serious question to be tried has been made out, it seems to me to be appropriate that leave to appeal from the dismissal of the application for interlocutory relief should be granted. This is not seriously opposed by the respondents. I therefore grant leave to appeal from the decision of Cooper

J on 23 September that the notice of motion for interlocutory

relief filed by Mr and Mrs Warner be dismissed with costs. I

order that the costs in this application be costs in the

appeal.

Mr. Duel1 of counsel, sought that his client, the fourth respondent, be dismissed from the proceedings. After hearing the parties on this point, I order that the fourth respondent be dismissed from the proceedings, reserving all questions as to costs in this regard.

The second substantive matter before me is an application by the first, second and third respondents, who for present purposes will be the only remaining respondents in the matter. Their application is to strike out the amended statement of claim filed on 23 September 1992. Although the amended statement of claim is different in some essentially formal respects to the earlier statement of claim in this matter which I have already struck out, it seems to me that the reasoning of Spender, French and Cooper JJ compels the conclusion that I also strike out the present amended statement of claim and I so order.

However, and although this is opposed by the respondents, I grant the applicants liberty to re-plead if they are so advised. I do this because for the first time in this matter, the applicants now have the benefit of professional representation, and it seems to me that in the public interest that course should be encouraged. For that

special reason I would reserve to Mr and Mrs Warner liberty to

replead if so advised.

The respondents oppose the grant of liberty to replead, as I have indicated. They do so on two grounds: first, that however the matter is pleaded, no reasonable cause of action of the kind foreshadowed in the pleading could exist in law; and secondly, it is submitted on behalf of one of the respondents that, in any event, the claims would be statute barred.

In the circumstances, it is not necessary that I deal with these contentions. On behalf of Mr and Mrs Warner, leave is now sought from me to appeal against my decision striking out the statement of claim. In my opinion, for the reasons I have already given in the other application before the court, it is appropriate that such leave be granted, and I grant to Mr and Mrs Warner leave to appeal from my order striking out the amended statement of claim dated 23 September

1992. As the question of repleading may be overtaken by

events in the Full Court, I suspend, for a period of three months, the operation of the order granting liberty to replead.

Consistent with that approach, and out of abundant

caution, I also grant leave to the respondents to cross-appeal

from my order granting to Mr and Mrs Warner leave to replead

if so advised. Having granted leave to cross-appeal, it seems to me to be unnecessary to now deal with the contentions put on behalf of the respondents that I should refuse leave to replead.

I order that the costs in the applications for leave to appeal and to cross-appeal from my and Cooper Jrs decisions be costs in the appeal, but I also order that the respondents' costs of the application to strike out the amended statement of claim be paid by the applicants. I further order that the respondents have liberty to tax those costs, notwithstanding that the principal proceedings have not concluded. However, in light of 0.62 r.3, this liberty to tax will be suspended in its operation for a period of three months.

I will stand the remaining aspects of the relief

sought in the motion, namely that the applicantsr action be

stayed or dismissed, over to a date to be fixed.

I hereby certify that this and the

preceding four (4) pages are a true copy of the reasons for judgment of Mr. Justice Beaumont .

Associate: : L-

Dated: 7. to . 7 ~