Commonwealth Savings Bank of Australia v State Bank of New South Wales

[1985] FCA 479

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)
)

DIVISION GENERAL )

BETWEEN:

COMMONhIEALTH SAVINGS	BANX OF
AUSTRALIA

Appellant

m:

STATE BANK OF NEW SOUTH WALES

STATE OF NEW SOUTH WALES

Respondents

m: Bowen C.J.

DATE: 16 September 1985

EXTEMPORE REASONS FOR JUDGMENT

This is an application by the Commonwealth Savings Bank

of Australia for an order for expedition of an appeal from

certain declaratlons and orders of Lockhart J. pronounced on 13

August 1985 in accordance with findings and conclusions expressed

in reasons for judgment delivered by his Honour on	23 April 1985
and 12 July 1985.

The decision of Lockhart J. was given in circumstances

where the Chief Justice of Australia had remitted to this Court

certain questions to be determmed in a preliminary way.

Lockhart J. has given declarations determinlng a series of

questions and made certain orders. A notice of appeal has been

filed and by this _.. application expedition is now sought.

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The respondents, the State Bank of New South Wales and

the State of New South Wales, oppose the granting of the order for expedition. They point out that two matters remain yet to be decided for which hearing dates have been given.

There is a motion for judgment listed for hearing before

Lockhart J. on 22 and 2 3 October 1985. This relates to leave

which had been granted by him to amend the defence of the

Commonwealth Savings Bank of Australia by putting on a

cross-claim in the nature of a set-off. It was suggested that

this had the result of preventing final judgment from flowing

from the decisions which his Honour had given.

This amendment was allowed by Lockhart J. on the basis

that evidence showing a prima facie case would be filed. :

Evidence was in fact filed in accordance with this order. The current motion for judgment is brought upon the basis that the

evidence filed i s not sufficient to substantiate the cause of

action so as to warrant the cross-claim in the nature of set- :.

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T h ~ s motion for judgment will be opposed but it remains for '!.

hearing.

The second date in question is a date fixed by Lockhart

J., namely, 2 December, as the date for the hearlng by him of the

matters of 'fact still In dispute, having regard to the

declarations and orders so far made. This means that a

substantial part of the evidence or issues originally in contest

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between the parties have now been treated by Lockhart J. as, in

effect, determined by his declarations and orders. In his view,

they will not be the subject of he hearing of 2 December 1985.

When one comes to the question of expediting the hearing

of this appeal, it is a situation where there is a balance on

both sides to be considered. It is obviously a very important

and large case affecting the parties in important respects. It

is one which normally, in the light of the issues involved, would

call for the earliest practicable determination.

On the other hand, the situation, while the pleadings

remain in their present state, is that even a determination on

the appeal would not finally dispose of the matter and, indeed,

there might then be an application for special leave to the High

Court of Australia.

The Court is stretched in relation to making judqes

available for an extremely early hearxng of thls appeal, due to

its current commitments. It would not be practicable to give a

hearing which would lead to a ~udgment being given before the

date listed for the hearing on 2 December 1985.

In these circumstances, it appears to me that the order

which I should make is to stand the appeal over to the call over,

which will be held towards the middle of December, for the

February sittings of the Full Court of this Court, rather than to

attempt to fix a date for this year. As I say, it is not

practicable to fir a date when the Court could provide a Full

Court in circumstances where judgment could be delivered before	2
December.

Should any fresh development take place which changes

the balance in any way, the parties will be at liberty to apply

for a change in that procedure and to ask for further

consideration to be given to the fixing of a date.

There is on foot a motion of incompetence put on by the

State of New South Wales. I do not think, sitting as a slngle

judge, I am in a position to deal with that motion. It relates only to the-first two of the fairly numerous grounds of appeal In

the notice of appeal. I think it should go over, to be heard in

conjunction with the appeal, so it will also be stood over at

this stage to the call over, sub~ect to liberty to apply to keep

it in line with the progress of the appeal.

An application was made orally to me for leave to appeal

upon the footing that there may not have been a right to appeal

against the declarations and orders since it may be considered

that they were of an interlocutory nature. This is a difficult area of the law. It has not been fully argued before me,

although some argument has been advanced.	No	application for
leave has been filed.

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Had the parties wlshed to have this matter fully

disposed of at this stage, I would have been prepared to

entertain it, as a smgle judge can in this court. However, I

think that the convenient course now is for the application for

leave to be made to a Full Court and to be made at the same tim ,

perhaps, as the appeal itself is coming on. It is the type of

case where a Full Court might well take the view that it would hear both the appeal and the application for leave together.

Accordingly, this application for speclal leave - which

has not been filed - is also stood over to the same date, to be

concurrent with the appeal.

There is on foot a notice of motlon by the State Bank of

New South Wales for an order that the hearing of any appeal

against any judgment of	Lockhart S. be stayed until a tlme
convenient to the Court	after judgment by his Honour on the

remaining issues for trial, other than damages, and thereafter

any appeal or appeals be expedited. It is a double-barrelled

request. I think it unnecessary to make an order in those terms.

I have rejected the application for an immediate

expedition order of the appeal - not really on the basis that it

does not deserve any expedition, but on the basis that the court

is unable to afford it a hearing, and that the matter is

complicated by the motion for hearing before Lockhart J. on 22

October, and the date for hearing on 2 December of the

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outstanding matters. I think, in the interests of justice, it is

undesirable to interfere with those dates. Accordlngly, the

appeal has been stood over, but I would not be prepared to grant

a stay against the hearing of the appeal or to lay down at this

stage what date might be fixed for the hearing of the appeal.

I think a fair order would be to dismiss the motion for

expedition and the motion for a stay, but to order that the costs

of each motion be costs in the appeal.

Mr. Handley, you can have an extension of time to file

your application for leave until Frlday, 20 September.

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