Catto & Ors v Hampton Australia Ltd (in Liq) & Ors No. Scgrg-98-731

[2000] SASC 226

CATTO & ORS v HAMPTON AUSTRALIA LIMITED
(IN LIQUIDATION) & ORS
[2000] SASC 226

Full Court:  Doyle CJ, Olsson and Wicks JJ

1................ DOYLE CJ....... I agree.

2................ OLSSON J....... This is an application for leave to appeal against an order made by Williams J in this matter on 26 April 2000.  He dismissed an appeal from a refusal of a Master to strike out portions of the statement of claim in this action.  SCR 46.18, relevantly, stipulates that a pleading may be struck out if it “discloses no reasonable cause of action”.  It has been considered in private in accordance with the provisions of the SCR by a Full Court comprising the Chief Justice, myself and Wicks J.

1. In Egan v The Commonwealth Minister for Transport [1976] 14 SASR 445 at 448 it was held that a reasonable cause of action means “one with some chance of success, however small, when only the allegations in the pleadings are considered”.

2. This situation is to be contrasted with that arising under the summary judgment provision of SCR 25.04.  Here the applicant/defendant must demonstrate that the plaintiff’s claim cannot succeed on any possible view of the facts or the law - that there is no real question to be tried.  (See General Steel Industries Inc v Commissioner for Railways (1964-65) 112 CLR 125.)

3. In this case Williams J, having separately reviewed the authorities, agreed with the Master that the contention that the plaintiffs can put their case as an extension to the principles identifiable in Gambotto v WCP Ltd (1994-1995) 182 CLR 432 “seems reasonably arguable”.

4. The authorities render it clear that leave will only be granted in relation to interlocutory issues in the most exceptional cases.

5. The general principle is that, in such cases, the appellate court will not interfere unless it be shown that the judge sought to be appealed from has acted on the wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts or failed to take into account some material consideration.  (Consolidated Gold Mining Areas NL & Ors v Enterprise Gold Mines NL (Receiver and Manager Appointed) & Anor (1991-92) 57 SASR 584 at 587.) The courts have always been reluctant to grant leave to appeal in relation to strike out applications (Coles Myer Ltd v Bowman (1996) 1 VR 457, State of Western Australia & Anor v Bond Corporation Holdings Ltd & Ors (1990-1992) 5 WAR 40).

6. It is inappropriate for the Full Court to go behind a conclusion such as that expressed by Williams J at this stage, unless it can be demonstrated, beyond question, that, on the face of the statement of claim, such a conclusion is patently untenable.  That is not the present situation.  The matter has been examined by the primary appellate judge and he has concluded to the contrary.

7. That is, however, not necessarily the end of the matter.  Once a defence is filed it will still be open to the defendant to seek that the relevant question of law be re-visited in one of several ways.  The most obvious would be to seek to have the discrete issue of law tried immediately, as a separate issue.

8. The application for leave to appeal will be refused.

11.............. WICKS J......................... I agree.