Axiom Plant Hire Pty Ltd v Austral Noyes Pty Ltd

[1992] FCA 138

IN THE FEDERAL COURT OF AUSTRALIA	1
1
VICTORIA DISTRICT REGISTRY	1 VG 65 of 1991
1
GENERAL DIVISION	1
B E T W E E N .

AXIOM PLANT HIRE PTY. LIMITED

Appellant

-and-

AUSTRAL NOYES PTY. LIMITED

Respondent

I

CORAM:	Black U, Lockhart and Gummow JJ.
PLACE:	Melbourne
m:	20 February 1992

r ~ o E R A L CCURT OF

AUSTRALIA

I PRINCIPAL FlEGlSTRI

EX TEMPORE REASONS FOR JUDGMENT

i	these proceedings in the sum of $160,000. f i s Honour, on 13 February 1992, refused
I
the application with costs.

BLACK U.:

This is an application for leave to appeal from an order made by Ryan

J, on a motion that the applicant provide further security for the respondent's costs of

In my view, this is not an appropnate case for the grant of leave to

appeal, such leave, of course, being necessary. I hold that view because I am not satisfied that any substantial injustice has in the circumstances, been caused to the appellant by the order appealed from, even if I were persuaded that there were errors in point of principle in his Honour's judgment.

The learned primary judge recited the history of the proceedings up
until the time the matter came before him. It is unnecessary for me to repeat what

his Honour said, but it is to be noted that when the matter came on for trial on 16

December 1991, before Heerey J., it appears from the material that the respondent

was then ready to proceed. Heerey J said that in his view the estimate of five days that had previously been given was wrong, and counsel for both parties agreed with that assessment. Those representing the respondent must then have known what the state of the proceedings was, and what its likely duration and complexity was, and yet no application at that stage was made for further security.

It was, of course, open to the respondent to apply for further security at

that time if it saw fit. It appears that at the end of the hearing before Heerey J. on	16 December it was plain to the parties that the matter was to proceed and that it
was likely that it would be heard on or about 2 March, as in fact happened. In those circumstances, my view is that it was then far too late for a further application for security to be made, as indeed it was, by motion on notice dated 5 February, that motion having been preceded by a letter requesting further security in a very substantial sum, sent early in January.

In all the circumstances, I am not persuaded that this is an appropriate

case for the grant of leave to appeal, and I propose an order accordingly.

[Lockhart J and Gummow J then delivered their reasons]

The order of the Court is that the application for leave to appeal is

dismissed with costs. The taxation of those costs is to take place at the same time as

any costs ordered in the substantive proceedings.

I should add for myself that I agree with the observations of Lockhart J.

about the application of an extension of time for leave to appeal. I do not think it appropriate, as is sworn in paragraph 4 of the affidavit in support of that application, to proceed upon the basis that the court is in a position rather llke that of someone who has not responded to a set of interrogatories. In a case such as this it is always possible for notes to be taken of oral reasons for judgment and for a decision to be made whether or not to appeal, at least m general terms, on the basis of the reasons transcribed by counsel, a solicitor or a clerk as the grounds of appeal can,lf necessary, be amended later.

I certify that this and the preceding 2

pages are a true copy of the Reasons for Judgment

herein of the Hon. Chief Justice Black.

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIAN DISTRICT REGISTRY	No. VG 65 of 1991
GENERAL DIVISION	1

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:	AXIOM PLANT HIRE PTY LTD Appellant/Respondent to Motion
AND :	AUSTRAL NOYES PTY LTD
Respondent/Applicant for Motion

COURT :	Black C.J., Lockhart and Gummow JJ.
DATE :	2 March 1992
PLACE :	Melbourne

REASONS FOR JUDGMENT

LOCKHART J.

I agree with the Chief Justice. I would only add for myself

some observations about the first motion that was before the Court today seeking an extension of time in which to apply for leave to appeal from the interlocutory judgment of Ryan J. of 13

February 1992. His Honour dismissed the motion of the respondent for further security and gave his reasons orally that day. But

in accordance with the Court's usual practice, the Court did not make available to the parties the transcription of his reasons until Auscript, as it is now called, had prepared the transcript, submitted it to his Honour for approval, and he had considered and approved it.

The Court made the reasons for judgment available to the parties approximately one week later, namely, on 21 February 1992. This lapse of time was the subject of comment, indeed, criticism in affidavit evidence filed on behalf of the respondents. The respondents used this delay to explain why the motion for leave to appeal was filed out of time. Although that motion was not opposed this morning and the Court therefore made the order that was sought so that it could embark upon the hearing of the motion for leave to appeal, I feel it important to state that the criticism, is in my opinion, without foundation. Obviously time passes between the giving of oral reasons in the Court and the release of corrected transcript of those reasons, the particular amount of time varying from case to case, for a variety of reasons. There does not appear to me to have been undue delay in this case.

Also, it is not beyond the wit of lawyers present in Court when a Judge gives oral reasons, for notes to be made by them sufficient to enable a motion for leave to appeal to be considered, and if necessary, filed. When the edited reasons are available, it is open to the applicant for leave to appeal to reformulate the proposed grounds of appeal with the benefit of the written reasons for judgment. I make those observations so

the passage of time between delivery of oral reasons and the	that it will not be thought that the criticism that was made of
making available by Auscript of the transcript was in some way the fault of any person or the Court. I agree in the orders proposed by the Chief Justice.

I certify that this and the preceding one

(1) page are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

~ssoclafe Dated: 2 March 1992

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY	1	NO. VG65 of 1991
GENE=	DIVISION	1

BETWEEN:  AXIOM PLANT HIRE PTY LTD

Applicant	- -
(Respondent to motion)

AND :  AUSTRAL NOYES PTY LTD

Respondent

(~~plicant on motion)

CORN4 : BLACK C.J., LOCKHART, GUMMOW JJ.

PLACE :	MELBOURNE.
DATE :	2 MARCH 1992.

REASONS FOR JUDGMENT (EX TEMPOREL

GUMMOW J. :

I agree. I would add the following observations. The decisions of the Full Court of this Court. Two of these are	applicable principles are not in dispute. They appear in many
Ahern v Deputv Commissioner of Taxation (Old1 (1987) 76 A.L.R. 137, in particular at 147, and National Mutual Holdinas Ptv Ltd v The Sentrv Corporation (1988) 19 F.C.R. 155 at 160-1.

The crucial passage in the reasons of the primary Judge

is as follows:

"However, the related factor which I regard as critical in the present case is that although made, as I said, almost five months af ter the application was instituted, the first motion for security for costs was compromised by an agreement to provide security in the sum of $10,000. That agreement was reached at a time when the application was substantially ready for trial. The applicant was entitled to assume that the amount of $10,000 was then acceptable to the respondent as security for its costs up to and including judgment. All that appears to have changed since then is that the estimate of the duration of the trial has increased from 5 to 15 sitting days, and the respondents have elected to retain two counsel instead of 'one experienced junior counsel ' as foreshadowed when the application for security was first made in September last year.

I do not regard those matters as amounting to a sufficient change of circumstances to justify the court in re-opening the question of security for costs. ~t this stage both parties have invested considerable time, money and effort in preparation for a trial which is immiment and has now been set down, as I understand it, for the beginning of March this year. To introduce the complication of a further order for security against that background would involve the risk of an injustice to the applicant."

In his submissions this morning, senior counsel for the applicant referred amongst other things to the third last sentence in the passage which I have read. It does appear that his Honour understated the nature and seriousness of the changes which had occurred. In particular, on 16 December

1991, the matter was called on for trial but as Heerey J.

pointed out the five days estimate that had been given was, even as matters then stood, quite inadequate. That point was then taken up by counsel and it was disclosed that a draft amended defence had been delivered on 12 December, that is to say several days before. There apparently had been informal discovery in aid of the issues raised by that proposed amended defence and this involved what was described as three piles of documents. In the event, Heerey J. gave directions for the further preparation of the case for an adjourned trial date. Those directions involved the taking of various steps up to and including 21 January 1992. A trial date in March 1992 was mentioned as a possibility and this became a certainty within a week or so after 16 December 1991.

As I say, these matters were not emphasised in the reasons of the learned primary Judge.

In addition, it was not until 3 January 1992 that a request was made for further security by solicitor's letter calling for a response within seven days from the solicitors for the other side. There was no response within that time, but the present application (in respect of the judgment on

which this application is brought) was not instituted until	the next month, that is to say 5 February 1992. This was
against a background in which, as I have said, directions had been given by Heerey J. on 16 December 1991 regarding the readiness of the matter for trial in March 1992. Consequently, the impact of any further application for security upon the holding of that trial date would be of considerable significance.

In my view, it follows that whilst the primary Judge understated the nature of the changes in the relevant circumstances, if the matter is to be approached on the basis either that there was a mistake as to the facts or insufficient weight given to relevant circumstances, so as to invite a re-exercise of the discretion of the primary Judge, there would then not be a real prospect of success for the present applicant on that re-exercise of discretion.

For those additional reasons, which are substantially in accord with what was said by the Chief Justice, I also would refuse the grant of leave.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable M r Justice Gmow.

Associate:  -- <--&it- ,&L-

Date:  18 March 1992.