Aylett v Attorney-General for the State of Tasmania

[2003] TASSC 19

[2003] TASSC 19

CITATION:Aylett v Attorney-General for the State of Tasmania & Ors [2003] TASSC 19

PARTIES:  AYLETT, Ricky John
  v

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

HENNESSY, Darren
SMITH, David

TITLE OF COURT:            SUPREME COURT OF TASMANIA
JURISDICTION:                 ORIGINAL
FILE NO/S:  128/1987
DELIVERED ON:                17 April 2003
DELIVERED AT:                 Hobart
HEARING DATE:               27 March 2003
RULING OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Plaintiff:  O M McTaggart
           Defendant:  P Turner
Solicitors:
           Plaintiff:  Greg Smith & Co
           Defendant:  Director of Public Prosecutions

Judgment  Number:  [2003] TASSC 19
Number of paragraphs:  7

Serial No 19/2003
File No 128/1987

RICKY JOHN AYLETT v
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA,
DARREN HENNESSY and DAVID SMITH

RULING  COX CJ

17 April 2003

1. The plaintiff applicant has applied for leave pursuant to Supreme Court Rules 2000, r56, to take a further step in his action, the last step having been taken more than six years prior to the date of filing of the application. The action was instituted by writ on 11 May 1987 in respect of an injury sustained by the plaintiff on 5 December 1984.

1. In support of the application, the applicant filed an affidavit containing certain hearsay material.  Rule 502(1) requires that an affidavit is to be confined to facts to which the deponent is able to depose to his or her own knowledge, while subrule (2) requires that an affidavit used on an interlocutory application may contain a statement as to the information and belief of the deponent if the source of information and the grounds of belief are given.  The Evidence Act 2001, s75, expresses the latter rule in the following words:

"75     In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source."

The issue I have to determine is whether or not the application is an interlocutory application or proceeding for these purposes.

1. While considerable assistance can be gained from cases such as Hall v The Nominal Defendant (1966) 117 CLR 423 which deal with the question whether any given order (eg, an order refusing to extend time under the Traffic Act 1925, s65A) is a final or interlocutory order for the purposes of the Judiciary Act 1903 - 2002 , there are, as Neasey J pointed out in Jacobs v Australian Abrasives Pty Ltd, unreported 8/1971 at 5, significant differences between that question and the question whether proceedings are final or interlocutory, and he accordingly declined to treat Hall v The Nominal Defendant as direct authority in the case before him.  That was a case in which application was made to set aside an interlocutory judgment entered on behalf of the plaintiff against the defendant.  He determined that such an application was a final proceeding because the proceeding before him, though interlocutory in form, was one which led to a final determination of an issue between the parties and that accordingly hearsay evidence was not admissible.  Since that time, however, the decision of the High Court in Carr v Finance Corporation of Australia Ltd (1980 - 1981) 147 CLR 246 has established that an order refusing to set aside a default judgment does not finally dispose of the rights of the parties because it does not prevent the defendant from making another and later application to set aside the judgment.

1. An order refusing leave to proceed has the effect of staying the proceedings. The purpose of r56 and its equivalent in the High Court Rules, O60, r12(2) "is not to enable the Court to insist that an action shall proceed and to fix times within which further steps shall be taken. What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them …" (William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496 per McTiernan, Kitto, Taylor and Owen JJ). Nevertheless, such an application may be repeated (Hall v The Nominal Defendant (supra) at 429 per Barwick CJ). Furthermore, orders staying proceedings other than by virtue of the rule under consideration here have been treated as interlocutory (Hind v Marquis of Hartington (1890) 6 TLR 267 where the stay was based on the ground that the proceedings against one of several defendants was scandalous, vexatious and an abuse of process). On the other hand, an order staying proceedings as an abuse of process on the ground that the matters in question could and should have been litigated in earlier proceedings was held to be a final one (Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35).

1. In Carr v Finance Corporation of Australia Ltd (supra), Mason J posed the question, at 256:

"… whether the refusal of an application amounts to a final order, when the practical effect of that order is to preclude the defendant from making another application to set aside the judgment, although in strict law the defendant is free to bring his application, knowing that it will inevitably fail."

He took the view that this was not the case.  So, too, did Gibbs CJ at 248, where he said:

"In my opinion the test in Licul v Corney (1976) 50 ALJR 439 requires the Court to have regard to the legal rather than the practical effect of the judgment."

See also Southern Cross Explorations NL v Fire and All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 at 209 per Kirby J, where he said:

"The repeated statements of the present authority of the High Court of Australia should be followed in this Court, whatever view might be entertained of the artificiality to which it can lead."

1. In an unreported decision, Chapmans Ltd v Davey & Ors [1998] NSWSC 148, Bryson J had to consider the applicability of the Evidence Act 1995 (NSW), s75, to an application to dismiss proceedings for want of prosecution. At 6, he said:

"In my opinion the application is interlocutory because it relates to practice and procedure and the dismissal of the proceedings for want of prosecution would not be based on or involve any decision on the rights of the parties, and would not act as res judicata. The order does not prevent the plaintiff from bringing fresh proceedings, having regard to Part 40 rule 8. The practical result of preventing the plaintiff from advancing its claim would be produced by the operation of the Limitation Act 1969 and not by any characteristic of the application or of the order. It could not be right that the character of an application for an order dismissing proceedings for want of prosecution differs according to the time at which the order is made and the operation of a limitation statute. Orders for summary dismissal are usually characterised as interlocutory and the example of summary dismissal on the ground of failure to show any triable issue was given in the judgment of Handley and Cripps JJA in Wickstead v Browne (1992) 30 NSWLR 1 at 11. The order under appeal in Port of Melbourne Authority v Anshun Pty Ltd [No 1] (supra) was an order staying the proceedings, but was based on a determination of the rights of the parties as it was decided by McGarvie J at first instance that res judicata in a wide sense operated and made it an abuse of process to raise matters which could have been litigated in earlier proceedings; see pp 37-38 per Gibbs J. Case law almost always relates to the characterisation of an order, as when testing a right of appeal, not of the application as in s75.  The Anshun [No 1] case seems to show that a final order may be made in an interlocutory application, if the grounds on which it is made and the statutory context of the right of appeal warrant that conclusion. I have acted on the view that it is the legal effect of an order and not its practical result which governs its characterisation as interlocutory or final, and that in this case, where the application is based on Part 33 rule 4 and no ground on which the merits could be considered or disposed of is put forward by either party, the terms of the order sought establish that the application is interlocutory. I act on the view of the effect of the High Court decisions expressed in the judgment of Kirby P in Southern Cross Explorations NL & Ors v Fire and All Risks Insurance Co Ltd & Ors [No 2] (supra) at 209. See too Brouwer v Titan Corporation Ltd (1997) 73 FCR 241."

1. I respectfully adopt this passage.  In my opinion the present proceeding is interlocutory in character because, even if leave is refused, the applicant may bring successive applications for leave to proceed, notwithstanding that he might be unable to advance fresh material which would be likely to lead to a successful result.  I rule that the hearsay material objected to is admissible.