Finch v The Heat Group Pty Ltd (No 2) - [2016] FCA 791

FEDERAL COURT OF AUSTRALIA
Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791

Appeal from: Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191

File number: VID 243 of 2016

Judge: PAGONE J

Date of judgment: 7 July 2016

Catchwords: PRACTICE AND PROCEDURE – interlocutory application to restrain respondents’ legal practitioners – principles of restraint of practitioners in appellate jurisdiction

Cases cited:
Bransdon v Gilbert (2007) 212 FLR 28

Dealer Support Services Pty Ltd (ACN 008 607 403) v Motor Trades Association of Victoria Ltd (ACN 008 643 561) (2014) 318 ALR 507

Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191

Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390

Grimwade v Meagher [1995] 1 VR 446

TJ Board & Sons Pty Ltd v Castello [2008] VSC 91

Woodgate v Leonard [2007] NSWSC 495

GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5^th Edition)

Date of hearing: 30 May 2016

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondents: Mr S Goubran

ORDERS

VID 243 of 2016

BETWEEN:
JO-ANNE FINCH

Applicant

AND:
THE HEAT GROUP PTY LTD

First Respondent

GILLIAN FRANKLIN

Second Respondent

PETER KADLECIK (and others named in the Schedule)

Third Respondent

JUDGE:

PAGONE J

DATE OF ORDER:

7 JULY 2016

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
PAGONE J:

A number of matters were listed for hearing on 30 May 2016 in connection with two proceedings by Ms Jo-Anne Finch in relation to orders by Jessup J made 4 March 2016 and 20 April 2016. The first proceeding concerned orders made on 4 March 2016 by Jessup J which included the transfer of a proceeding to the Federal Circuit Court of Australia: Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. On 18 March 2016 Ms Finch commenced proceeding numbered VID 243 of 2016 for leave to appeal those orders. The second proceeding concerned orders made on 20 April 2016 by his Honour for costs in favour of the respondents: Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390. On 11 May 2016 Ms Finch commenced proceeding numbered VID 457 of 2016 for leave to appeal the costs orders and for leave to make that application out of time. Both the 18 March 2016 and the 11 May 2016 proceedings by Ms Finch came to be listed for hearing on 30 May 2016, but were adjourned on the application of Ms Finch. The first proceeding had been listed on 13 May 2016 for hearing on 30 May 2016 but the second came to be listed to be heard on that date on 25 May 2016. The adjournment…

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.

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Details

Case: [2016] FCA 791
Decision Date: 7 July 2016

CaseChat Overview and Summary

Finch sought to restrain the legal practitioners of The Heat Group Pty Ltd from acting in proceedings before the Federal Court, citing potential bias and a conflict of interest. The Federal Court was tasked with determining whether such an application was appropriate in its appellate jurisdiction. The central legal issue was whether the Court could exercise its inherent jurisdiction to restrain a practitioner from appearing before it in an appellate capacity. The Court found that such an order was not appropriate in its appellate jurisdiction. It reasoned that the inherent jurisdiction to restrain practitioners was a trial court power, not typically exercised by appellate courts. The Court also highlighted that the proper forum for addressing potential bias or conflicts of interest was through an appeal or an application under section 35 of the Judiciary Act 1903. Therefore, the application was dismissed, with the Court reaffirming the limitations on its appellate jurisdiction in this regard.

Orders

Orders of the court

1. The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191
File number:	VID 243 of 2016
Judge:	PAGONE J
Date of judgment:	7 July 2016
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application to restrain respondents’ legal practitioners – principles of restraint of practitioners in appellate jurisdiction
Cases cited:	Bransdon v Gilbert (2007) 212 FLR 28 Dealer Support Services Pty Ltd (ACN 008 607 403) v Motor Trades Association of Victoria Ltd (ACN 008 643 561) (2014) 318 ALR 507 Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191 Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390 Grimwade v Meagher [1995] 1 VR 446 TJ Board & Sons Pty Ltd v Castello [2008] VSC 91 Woodgate v Leonard [2007] NSWSC 495
GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5^th Edition)
Date of hearing:	30 May 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Mr S Goubran