Churche v Australian Prudential Regulation Authority (No 2)

FEDERAL COURT OF AUSTRALIA

Churche v Australian Prudential Regulation Authority (No 2) [2006] FCA 1054

PRACTICE AND PROCEDURE – leave to appeal – interlocutory judgment – whether sufficient doubt attended decision – whether substantial injustice would be caused if leave were not granted – statutory construction – existence of previous authority – possibility of issue estoppel – leave sought in respect of matter of procedure

Held: Leave to appeal granted.

Federal Court of Australia Act1976 (Cth) s 24(1A)

Churche v Australian Prudential Regulation Authority [2006] FCA 613 referred to
Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 applied
Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428 referred to

WARWICK JAMES CHURCHE v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
NSD 2471 OF 2005

COWDROY J
15 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2471 OF 2005

BETWEEN:	WARWICK JAMES CHURCHE Applicant
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	15 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to appeal the decision delivered in these proceedings on 26 May 2006.

2.Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2471 OF 2005

BETWEEN:	WARWICK JAMES CHURCHE Applicant
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Respondent

JUDGE:	COWDROY J
DATE:	15 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from my decision given on 26 May 2006: see Churche v Australian Prudential Regulation Authority [2006] FCA 613 (‘the May decision’). Leave is necessary because the decision was delivered in respect of an interlocutory application: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2. The facts are set out in the May decision, and I will not repeat them at length here. In summary, the judgment related to an application to set aside two paragraphs of a notice to produce which had been issued on an application for preliminary discovery. The two paragraphs sought production of draft versions of a report produced by the respondent (‘APRA’) under s 60 of the Insurance Act 1973 (Cth). I set aside such paragraphs on two grounds: firstly, that the production of the documents was prohibited under s 56 of the Australian Prudential Regulation Authority Act 1998 (Cth) (‘APRA Act’); and secondly, that the reports were not properly the subject of a notice to produce in an application for preliminary discovery under O 15A r 6 of the Federal Court Rules.

3. The principles relating to leave to appeal from an interlocutory judgment were discussed in Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 at 398-9. The Court there accepted that the major considerations in determining whether leave should be granted are: 1) whether the decision is attended by sufficient doubt to…