Dart v Norwich Union Life Australia Ltd

[2001] FCA 1481

FEDERAL COURT OF AUSTRALIA

Dart v Norwich Union Life Australia Ltd [2001] FCA 1481

SYDNEY RONALD DART AND ORS v NORWICH UNION LIFE AUSTRALIA LIMITED AND ORS

No Q 205 of 2001

SPENDER J
BRISBANE
22 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 205 OF 2001

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 - formerly ROBERTS LEU NORTH (A FIRM)
FOURTH RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

22 OCTOBER 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS:

1.The applicants have leave to appeal from the judgment and orders given on 4 September 2001; the appeal to be based on the grounds set out in the document styled “Notice of Appeal” filed 25 September 2001.

2.Service on the first respondent of that document on 26 September 2001 and other respondents by post on the same day be sufficient service of the notice of appeal in respect of which leave has been granted.

3.There be no order as to the costs in respect of the application for an extension of time within which to serve a notice of appeal, or the application for leave to appeal.

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	Q 205 OF 2001

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 - formerly ROBERTS LEU NORTH (A FIRM)
FOURTH RESPONDENT

JUDGE:	SPENDER J
DATE:	22 OCTOBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 4 September 2001 I dismissed proceedings brought by Mr Dart and others on strike-out applications brought by the respective respondents.

2. Mr Dart filed a notice of appeal on 25 September 2001, but apparently served the first respondent on 26 September 2001 and the other respondents by post on the same day.  This service is out of time, and I understand that both respondents have advised the Court and Mr Dart that for that reason they did not accept that the appeal has been validly instituted.

3. An application by Mr Dart for leave to appeal, together with a supporting affidavit, was received in the registry on 20 September 2001. 

4. In Hall v Nominal Defendant (1966) 117 CLR 423, Taylor J said at 440:

   “So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only.  On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory: Hind v Marquis of Hartington (1890) 6 TLR 267. The same view was taken of an order striking out a plaintiff’s statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole (1891) 64 LT 703; and of an order dismissing an action as frivolous and vexatious in In re Page [1910] 1 Ch 489.”

5. The orders made on 4 September 2001 therefore appear to be interlocutory, and leave is required.  It seems that there was some confusion in the registry concerning the need to seek leave to appeal. 

6. In the circumstances there seems to be no prejudice to the parties by granting leave to appeal; while I am far from persuaded that there are any arguable grounds for the appeal, having regard to the practical conclusions of the orders that I made, I think that leave to appeal should be granted. 

7. By facsimile transmission dated 22 October 2001, Mr Humphries of the firm Connolly Suthers in respect of his clients indicated that:

   “…our clients neither consent to nor oppose orders being made in terms of
   the applications.”

8. I grant leave to appeal from the judgment and orders given on 4 September 2001.  The appeal is on the grounds set out in the document styled “Notice of Appeal” filed 25 September 2001.   I order that service on the first respondent of that document and other respondents by post on the same day be sufficient service of the notice of appeal in respect of which leave has been granted.  The registry should attend to the preparation of the appeal documents in the ordinary way.

9. I order that there be no costs in respect of the application for an extension of time within which to serve a notice of appeal, or the application for leave to appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             22 October 2001

The two applications were heard in Chambers
Date of Hearing:	22 October 2001
Date of Judgment:	22 October 2001