Cook v Pasminco Limited

Case [2001] FCA 1277

FEDERAL COURT OF AUSTRALIA

Cook v Pasminco Limited [2001] FCA 1277

APPEALS – application for leave to appeal – application for an extension of time within which to file a notice of appeal – whether appeal would be futile – where issue raised on appeal is of public importance

COSTS – where order made at first instance directing a solicitor to pay the other parties’ costs – issue of public importance

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at [18] followed
Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23 at 32-33 followed
Eatts v Dawson (1990) 21 FCR 166 followed
Deighton v Telstra Corporation Ltd (Lee, Heerey and R D Nicholson J, 17 October 1997, unreported) followed
Gallo v Dawson (1990) 64 ALJR 458 at 459 followed

ROSLYN GAY COOK & ORS v PASMINCO LIMITED & ORS
N 132 of 2000

IN THE MATTER OF ROSLYN GAY COOK & ORS v PASMINCO LIMITED & ORS
CLAS OLAF EINBERG & ORS V PASMINCO LIMITED & ORS
N 211 of 2001

STONE J
7 SEPTEMBER 2001
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 132 OF 2000

BETWEEN:

ROSLYN GAY COOK
FIRST APPLICANT

SAMANTHA JOY COOK
(by her next friend ROSLYN GAY COOK)
SECOND APPLICANT

VICKI LEAH BLAD
THIRD APPLICANT

ASHLEIGH AGARS
(by his next friend VICKI LEAH BLAD)
FOURTH APPLICANT

AND:

PASMINCO LIMITED
(ACN 004 368 674)
FIRST RESPONDENT

PASMINCO COCKLE CREEK SMELTER PTY LIMITED
(ACN 000 083 670)
SECOND RESPONDENT

PASMINCO PORT PIRIE SMELTER PTY LIMITED
(ACN 008 046 428)
THIRD RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

7 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the applicants’ solicitors, Coleman & Greig, have leave to file and serve within twenty-one days a notice of appeal from the judgments of his Honour Justice Lindgren delivered on 12 December 2000 and 7 February 2001;

2.the applicants’ solicitors, Coleman & Greig pay the respondents’ costs of and relating to the hearing on 8 June 2001.

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

N 211 OF 2001
IN THE MATTER OF ROSLYN GAY COOK & ORS v PASMINCO LIMITED & ORS

BETWEEN:

CLAS OLAF EINBERG
FIRST APPLICANT

PAUL LUCAS
SECOND APPLICANT

JOHN DENNIS COWLEY
THIRD APPLICANT

CRAIG MANNERS COCKBURN
FOURTH APPLICANT

MATTHEW JOHN ROWE
FIFTH APPLICANT

PAUL GARY GAMBIN
SIXTH APPLICANT

STEPHEN JOHN BOOTH
SEVENTH APPLICANT

MARGARET AMANDA PARKIN
EIGHTH APPLICANT

AND:

PASMINCO LIMITED
(ACN 004 368 674)
FIRST RESPONDENT

PASMINCO COCKLE CREEK SMELTER PTY LIMITED
(ACN 000 083 670)
SECOND RESPONDENT

PASMINCO PORT PIRIE SMELTER PTY LIMITED
(ACN 008 046 428)
THIRD RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

7 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the applicants have leave to file and serve within twenty-one days a notice of appeal from the…

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AGLC
Cook v Pasminco Limited [2001] FCA 1277
Case
[2001] FCA 1277
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Cook v Pasminco Limited involved a dispute concerning the necessity of obtaining leave to appeal certain judgments. The applicants, Cook, sought leave to appeal the First and Second Judgments delivered by Justice Lindgren on December 12, 2000, and February 7, 2001, respectively. The primary issues before the court were whether leave to appeal was required, if an extension of time should be granted for filing a notice of appeal, and if leave was necessary, whether it should be granted. The respondents argued that leave was mandatory due to the interlocutory nature of the judgments and because the applicants’ solicitors were not parties to the original proceedings.

The court examined whether the First and Second Judgments were interlocutory and if the solicitors, Coleman & Greig, were required to obtain leave to appeal. Under the Federal Court of Australia Act 1976, leave is necessary for appealing an interlocutory judgment. However, even if leave is not required, the court retains the discretion to grant an extension of time. The applicants had filed their notices of motion within the stipulated periods, but the court needed to determine the appropriate relief to grant. The court concluded that the solicitors, despite not being parties to the original proceedings, could appeal with the court's leave, as they were directly affected by the judgments' imposition of costs.

The court granted the solicitors leave to file and serve a notice of appeal within twenty-one days from the judgments. The applicants were also ordered to pay the respondents’ costs relating to the hearing. This decision allowed the solicitors to proceed with their appeal while acknowledging the interlocutory nature of the judgments and the procedural requirements for such appeals.

Orders

Orders of the court

1. the applicants’ solicitors, Coleman & Greig, have leave to file and serve within twenty-one days a notice of appeal from the judgments of his Honour Justice Lindgren delivered on 12 December 2000 and 7 February 2001;

2. the applicants’ solicitors, Coleman & Greig pay the respondents’ costs of and relating to the hearing on 8 June 2001.

1. the applicants have leave to file and serve within twenty-one days a notice of appeal from the jugdments of his Honour Justice Lindgren delivered on 12 December 2000 and 7 February 2001; and

2. the applicants pay the respondents’ costs of and relating to the hearing on 8 June 2001.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

There is no dispute between the parties as to the issues raised by the notices of motion and the application. They are:1.whether leave to appeal was required in respect of the First and Second Judgments;2.if leave is not required, whether the Solicitors should be given an extension of time in which to file a notice of appeal; and3.if leave is required, whether the Solicitors should be granted leave to appeal against the First and Second Judgments. CONSIDERATION Both before me at the hearing and in written submissions, both parties presented detailed arguments addressing the first question, namely whether leave to appeal is required. The respondents submitted that leave is required for two reasons:(a)the First and Second Judgments are interlocutory; and(b)the Solicitors were not party to the proceeding in which the First and Second Judgments were pronounced. A party seeking to appeal from an interlocutory judgment made by a single judge of the Court requires leave; Federal Court of Australia Act 1976 (Cth) s 24(1A). If application for that leave is not made orally at the time the judgment is pronounced, it must be made within seven days “from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow”; Federal Court Rules O 52 r 10(2). If leave is given, the notice of appeal must be filed and served within twenty-one days after the date when leave to appeal was granted; O 52 r 15(1)(a)(ii). Where leave to appeal is not required, any notice of appeal must be filed and served within twenty-one days after the date when the judgment appealed from was pronounced; O 52 r 15(1)(a)(i). In both cases, the Court may extend the time allowed. The notice of motion that was later amended (see [4] above) was filed within seven days of the First Judgment (taking into account the vacation period; see O 3 r 5 and O 2 r 2). The notice of motion seeking leave to appeal from the Second Judgment was filed within twenty-one days of that Judgment, but not within seven days. Irrespective of whether it was thought that the Second Judgment was interlocutory or final, the notice of motion was inappropriate. If the Second Judgment was interlocutory, it was filed out of time; if the Second Judgment was final, it sought the wrong relief. The notice of motion, later amended, seeking leave to appeal from the First Judgment was within time if that Judgment was interlocutory, but otherwise inappropriate. For reasons that are set out below, I have decided that the Solicitors should be permitted to appeal. If leave is necessary, I would grant that leave; if an extension of time is necessary, I would grant such an extension. It is therefore unnecessary for me to form a concluded view as to whether his Honour’s judgments were final or interlocutory. Although the Solicitors were not party to the proceeding in which the First and Second Judgments were pronounced, they may appeal from those judgments with the leave of the Court; Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at [18]. As the First and Second Judgments imposed liability for costs directly on the Solicitors, they are clearly persons aggrieved; Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23 at 32-33. The respondents have indicated that they do not oppose the Solicitors being given leave to appeal on this basis. They do, however, submit that the judgments are interlocutory and oppose leave being given on this basis.