Canberra Residential Developments Pty Limited v Brendas (No 3) - [2008] FCA 350

FEDERAL COURT OF AUSTRALIA
Canberra Residential Developments Pty Limited v Brendas (No 3) [2008] FCA 350
PRACTICE AND PROCEDURE – application to the trial judge for leave to appeal from an interlocutory judgment of that judge, refused
Federal Court of Australia Act 1976 (Cth) ss 24(1A) and 25(2)(a)
Federal Court Rules Order 52, r 10
Canberra Residential Developments Pty Limited v Brendas (No 2) [2008] FCA 255
Decor Corporation Pty Ltd v Dart Industries Inc (1992) 104 ALR 621
Niemann v. Electronic Industries Ltd. (1978) VR 431
House v The King (1936) 55 CLR 499
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED ACN 098 326 375 v SPIROS BRENDAS, BEVERLEY ROSE BRENDAS, KENOSS PTY LIMITED ACN 008 544 232 AND CANBERRA LAND DEVELOPMENTS PTY LIMITED ACN 103 875 823
ACD 21 OF 2006
GRAHAM J
5 MARCH 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 21 OF 2006

BETWEEN:

CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED ACN 098 326 375
Applicant

AND:

SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED ACN 008 544 232
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LIMITED ACN 103 875 823
Fourth Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

5 MARCH 2008

WHERE MADE:

CANBERRA

THE COURT:
1.Orders that the application for leave to appeal made ore tenus at 10.15am on 5 March 2008 from the interlocutory judgment of Graham J of 4 March 2008 (Canberra Residential Developments Pty Limited v Brendas (No 2) [2008] FCA 255) be dismissed.
2.Orders that the applicant pay the costs of the first, second and third respondents of the application.
3.Makes no order in respect of the costs of the fourth respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 21 OF 2006

BETWEEN:

CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED ACN 098 326 375
Applicant

AND:

SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED ACN 008 544 232
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LIMITED ACN 103 875 823
Fourth Respondent

JUDGE:

GRAHAM J

DATE:

5 MARCH 2008

PLACE:

CANBERRA

REASONS FOR JUDGMENT

These proceedings were commenced by an application filed on 14 September 2006. The hearing of the matter commenced on Monday, 26 November 2007 and continued through to and including Friday, 30 November 2007 whereupon it was stood over, part heard, to Tuesday, 4 March 2008 at 10.15 am in the anticipation that the hearing would conclude on or before Thursday, 6 March 2008. It is now shortly after 3.00 pm on Wednesday, 5 March 2008 and, as yet, the hearing has not progressed beyond the stage that it had reached at 4.22 pm on 30 November 2007.
When the matter was adjourned, Mr Spiros Brendas, the first respondent, was under cross-examination by senior counsel for the applicant, Mr R. Crowe SC. The cross-examination commenced at 11.45 am on 30 November and continued until 4.11 pm,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 350
Decision Date: 5 March 2008

CaseChat Overview and Summary

In the matter of Canberra Residential Developments Pty Limited v Brendas (No 3), the applicant sought leave to appeal from an interlocutory judgment made by the trial judge on the issue of whether the applicant could be granted leave to cross-examine a witness by different counsel. The Federal Court of Australia was tasked with determining whether the trial judge's decision to deny the applicant's request was correct and whether leave to appeal should be granted. The legal issues the court needed to decide involved the interpretation of relevant statutes and rules regarding interlocutory appeals and the exercise of judicial discretion in granting leave to cross-examine a witness by different counsel. The court considered the arguments presented by both the applicant and the respondents, as well as relevant case law and principles.

The court found that the trial judge's decision was not attended with sufficient doubt to warrant reconsideration by a Full Court. The court held that there would be no substantial injustice to the applicant if leave to appeal were refused, as the decision would merge in any final judgment, and an appeal against the final judgment would permit the correctness of the decision to be raised. Furthermore, the court considered the potential prejudice to the respondents, particularly the individuals involved, who would face undue prolongation of the litigation if leave were granted. The court ultimately dismissed the application for leave to appeal, finding that the trial judge's decision was not an appropriate case for granting leave to appeal.

Orders