Dart v Norwich Union Life Australia Limited - [2005] FCA 327

FEDERAL COURT OF AUSTRALIA
Dart v Norwich Union Life Australia Limited [2005] FCA 327
PRACTICE AND PROCEDURE – appeals – application for leave to appeal – oral application made to single judge after interlocutory judgment – whether further application to Full Court is competent
Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(2)
Federal Court Rules, O 52 r 10
Wati v Minister for Immigration and Multicultural & Indigenous Affairs (1997) 78 FCR 543 cited
Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Ltd (Prov Liq Apptd) (1991) 31 FCR 587 cited
Donkin v AGC (Advances) Ltd [1995] FCA 696 cited
Hamod v New South Wales [2002] FCAFC 97 cited
Reid v Nairn (1985) 60 ALR 419 applied
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988)
18 FCR 424 applied
Atkinson v Commission of Taxation (2000) 46 ATR 32 cited
SYDNEY RONALD DART & ORS v NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295) & ORS
No QUD 43 of 2005
SPENDER J
30 MARCH 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 43 of 2005

BETWEEN:

SYDNEY RONALD DART
FIRST APPLICANT

SHIRLEY NORMA DART
SECOND APPLICANT

FREDERICK WILLIAM DART
THIRD APPLICANT

AND:

NORWICH UNION LIFE AUSTRALIA LIMITED
(ACN 006 783 295)
FIRST RESPONDENT

VYNOTAS PTY LTD
(ACN 007 093 601)
SECOND RESPONDENT

JONES LANG LASALLE (QLD) PTY LIMITED
(ACN 010 411 140)
THIRD RESPONDENT

ROBERTS NEHMER McKEE (A FIRM)
FOURTH RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

30 MARCH 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The notice of motion filed 12 February 2005 by the applicants is dismissed as incompetent in the case of the two male applicants, and for non-compliance with the requirements of O 52 r 10 of the Federal Court Rules, in respect of the female applicant.
2.The applicants should pay the costs of each of the respondents, of and incidental to this notice of motion, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 43 of 2005

BETWEEN:

SYDNEY RONALD DART
FIRST APPLICANT

SHIRLEY NORMA DART
SECOND APPLICANT

FREDERICK WILLIAM DART
THIRD APPLICANT

AND:

NORWICH UNION LIFE AUSTRALIA LIMITED
(ACN 006 783 295)
FIRST RESPONDENT

VYNOTAS PTY LTD
(ACN 007 093 601)
SECOND RESPONDENT

JONES LANG LASALLE (QLD) PTY LIMITED
(ACN 010 411 140)
THIRD RESPONDENT

ROBERTS, NEHMER McKEE (A FIRM)
FOURTH RESPONDENT

JUDGE:

SPENDER J

DATE:

30 MARCH 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT

I arranged for this matter to be listed today solely for the question of determining the competence of an application for leave to appeal from orders made by Dowsett J on 10 February 2005.
The reasons for that course arise because the transcript of the proceedings before Dowsett J indicates that after his Honour delivered judgment, Dowsett J asked Mr Dart, as appears at page 75 of the transcript:
‘Now, you make…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dart v Norwich Union Life Australia Limited

Details

AGLC: Dart v Norwich Union Life Australia Limited [2005] FCA 327
Case: [2005] FCA 327
Decision Date: 30 MARCH 2005

CaseChat Overview and Summary

The case of Dart v Norwich Union Life Australia Limited involved a family appealing against a decision made by Dowsett J. The family, represented by Dart, sought leave to appeal the judgment. This application was initially refused by Dowsett J. The respondents argued that the application for leave to appeal was incompetent and not in compliance with Order 52 Rule 10 of the Federal Court Rules. The third respondent further contended that a party cannot make a second application to the Full Court for leave to appeal. The fourth respondent argued that the application was not properly instituted due to non-compliance with the service requirements of Order 52 Rule 10.

The central legal issue was whether the family's application for leave to appeal was valid and in accordance with the Federal Court Rules. The respondents contended that the application was incompetent due to procedural errors. The third respondent argued that a second application for leave to appeal was not permissible. The fourth respondent raised issues regarding the timing of the service of the notice of motion and compliance with the rules.

The court determined that the family's application for leave to appeal was indeed incompetent. For the two male applicants, the application was considered incompetent as it was made orally after the initial refusal by Dowsett J. The court held that such a second application was not permissible under the rules. For the female applicant, the application was dismissed for non-compliance with the service requirements of Order 52 Rule 10. The court also noted that the applicants had not sought an extension of time to comply with the rules. Consequently, the application for leave to appeal was dismissed.

The court ordered that the notice of motion filed by the applicants be dismissed. The male applicants' application was dismissed as incompetent, while the female applicant's application was dismissed for non-compliance with the Federal Court Rules. The applicants were ordered to pay the costs of each respondent, to be taxed if not agreed.

Orders

Orders of the court

1. The notice of motion filed 12 February 2005 by the applicants is dismissed as incompetent in the case of the two male applicants, and for non-compliance with the requirements of O 52 r 10 of the Federal Court Rules, in respect of the female applicant.

2. The applicants should pay the costs of each of the respondents, of and incidental to this notice of motion, to be taxed if not agreed.

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

SPENDER J

The outline of submissions on behalf of the first and second respondent recites in par 3 that:‘Immediately following the giving of his Reasons for Judgment, the Dart family made oral application to Dowsett J for leave to bring an appeal from the judgment of Dowsett J just given; that application was heard and then refused by Dowsett J. That application can only have been brought pursuant to Order 52 Rule 10(1) of the Federal Court Rules.’ (my emphasis) The outline on behalf of the first and second respondents, in par 4 says:‘The orders of Dowsett J made 10 February 2005 constitute an “interlocutory judgment” for the purposes, and within the meaning, of Order 52 Rule 10 of the Federal Court Rules.’And the submissions continue at par 5:‘Presumably, the application for leave to appeal which is brought before the Court on 30 March 2005 is an application for leave to appeal brought pursuant to Order 52 Rule 10(2) of the Federal Court Rules.’ It is contended on behalf of the first and second respondents that an application for leave to appeal brought pursuant to O 52 r 10(2) of the Federal Court Rules can only be brought where that application for leave to appeal has not been made in accordance with O 52 r 10(1) of the Federal Court Rules. An application for leave to appeal had been made in accordance with that first subrule, and it was submitted that, accordingly, this application for leave to appeal is incompetent. The submissions on behalf of the third respondent, amongst other things, refer to the requirements of O 52 r 10 and, in particular, on behalf of the third respondent it was submitted that a party has no right to make a second application to the Full Court for leave to appeal. The third respondent submits that the notice of motion, insofar as it relates to Sydney Ronald Dart, is incompetent for the reason that Mr Dart elected to make an application orally before Dowsett J and was not entitled to make a second application. It was further submitted that the notice of motion, insofar as it relates to Frederick Dart, is incompetent for the reason that even though Mr Dart was not specifically asked about the application for leave to appeal, he was present in Court, had adopted the submission made by his father in respect of the applications brought by the respondents and did not object to the application. The third respondent submitted that insofar as Mrs Dart is concerned no oral application for leave was made on her behalf as she was unrepresented on the hearing on 10 February 2005, Mr Dart having been refused leave to appear on her behalf by Dowsett J. The service of the notice of motion on the third respondent was not effected by 19 February 2005 in compliance with the requirements of O 52 r 10, and it was therefore submitted that the application for leave to appeal has not been properly instituted. No application has been made by Mrs Dart for an extension of time within which to seek leave to appeal. In relation to the fourth respondent, an affidavit by Sarah Grace Greer, filed today by leave, deposes to the fact that the notice of motion by the applicants in these proceedings was served on 16 March 2005, which is outside the time required by O 52 r 10. The affidavit deposes to the fact that that the applicants’ chronology, summary of facts, submissions and list of authorities were not received in accordance with the directions which had been made by the Court but, in any event, the submission is made that an application for leave to appeal was made by Mr Dart and was refused by His Honour.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 43 of 2005

BETWEEN:	SYDNEY RONALD DART FIRST APPLICANT SHIRLEY NORMA DART SECOND APPLICANT FREDERICK WILLIAM DART THIRD APPLICANT
AND:	NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295) FIRST RESPONDENT VYNOTAS PTY LTD (ACN 007 093 601) SECOND RESPONDENT JONES LANG LASALLE (QLD) PTY LIMITED (ACN 010 411 140) THIRD RESPONDENT ROBERTS NEHMER McKEE (A FIRM) FOURTH RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	30 MARCH 2005
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	30 MARCH 2005
PLACE:	BRISBANE