Creaser v Savannah Associates Ltd

[2002] FCA 835

FEDERAL COURT OF AUSTRALIA

Creaser v Savannah Associates Ltd [2002] FCA 835

WAYNE CREASER v SAVANNAH ASSOCIATES LIMITED & ORS
A27 of 2002

WAYNE CREASER v RAYMOND SCHOFIELD
A28 of 2002

MADGWICK J
7 JUNE 2002
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	A27 of 2002

BETWEEN:	WAYNE CREASER APPLICANT
AND:	SAVANNAH ASSOCIATES LIMITED FIRST RESPONDENT
WYLKIAN PTY LIMITED SECOND RESPONDENT
AUSTRALIAN SPECTACULARS PTY LIMITED THIRD RESPONDENT
HAROLD SCOTT UPTON FOURTH RESPONDENT

A28 of 2002

BETWEEN:	WAYNE CREASER APPLICANT
AND:	RAYMOND SCHOFIELD RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	7 JUNE 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The application for leave to appeal in each proceeding be dismissed.

2.The applicant pay the costs of the respondents in each proceeding.

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	A27 of 2002

BETWEEN:	WAYNE CREASER APPLICANT
AND:	SAVANNAH ASSOCIATES LIMITED FIRST RESPONDENT
WYLKIAN PTY LIMITED SECOND RESPONDENT
AUSTRALIAN SPECTACULARS PTY LIMITED THIRD RESPONDENT
HAROLD SCOTT UPTON FOURTH RESPONDENT

A28 of 2002

BETWEEN:	WAYNE CREASER APPLICANT
AND:	RAYMOND SCHOFIELD RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 JUNE 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter, leave was sought to appeal against an interlocutory order of Higgins J of the Supreme Court of the Australian Capital Territory. 

2. The proceedings before his Honour concerned dissatisfaction by the applicant, who is the Chief Inspector of Dangerous Goods for the Australian Capital Territory, responsible for the licensing and storage, importation, transport and sale of fireworks in the Territory.  There has been a history of litigation between the applicant and the respondents in the two cases before me, and in particular, apparently between the applicant and Mr Schofield, who is the respondent in one of the applications.

3. His Honour made orders in the form that, pending further order of the Supreme Court, various fireworks or explosives licences should be “deemed to be renewed and continued in effect” or were “deemed to have been issued and to be continued, in effect”.  The applicant, in his application for leave to appeal pointed to supposed jurisdictional difficulties with an order in that form ex facie and also offered discretionary criticisms of an order in that form of an in limine nature, asserting that nobody could be sure what would be the rights of the applicant to enforce the Dangerous Goods Act 1975 (ACT) which deals with fireworks and explosive materials.

4. After some discussion on the application for leave to appeal before me, the parties again approached Higgins J and, apparently in light of the discussion which had occurred in this Court, his Honour was persuaded to discharge the orders that he made and to deal with the matters in another way. 

5. Thus, the orders which would have been the subject of the appeal no longer exist and any order of the Court could have no practical effect.  Counsel for the applicant concedes, and rightly so, that leave to appeal should not now be granted although they argue that, nevertheless, the respondents should pay the applicant's costs because of the strong likelihood that the Court would have upheld their submissions and, but for those submissions and for their approach to this Court, the orders of Higgins J which concerned the applicant, would have remained in force.

6. In my opinion, whatever the merits of that argument, there is no reason why the practical problems, which on their face seem to me to be real, could not have been re-agitated before his Honour, as indeed they were after discussion in this Court.  Moreover, I did not detect any uncooperative attitude on the part of the respondents in relation to the form of the interlocutory relief which they sought.  It was really the substance that concerned them; at least, that is how the matter was put to me by their counsel.  The ordinary rule of the costs following the event will be applied.

7. In the circumstances, leave to appeal is refused and the applicant is to pay the respondent’s costs of each application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             1 July 2002

Counsel for the Applicant:	Mr P Walker (A27/02),  Mr C Erskine (A28/02)
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr R Thomas
Solicitor for the Respondent:	Gary Bates & Co
Date of Hearing:	7 June 2002
Date of Judgment:	7 June 2002