Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd - [2000] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 7828 of 1996

FLETCHER CONSTRUCTIONS
AUSTRALIA LTD

Appellant/Respondent

LINES MACFARLANE & MARSHALL
PTY LTD

Respondent/Applicant

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APPLICATION ON SUMMONS
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JUDGES:	TADGELL and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2000
DATE OF ORDER:	1 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 158

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PRACTICE AND PROCEDURE – Reasons for judgment – Handed down as "draft" with intimation by judge that final corrected reasons would be provided "in the next couple of days" – Judgment orally pronounced.

APPEAL – Time for serving notice of appeal expired before final reasons provided by judge – Notice of appeal served within time but in unsatisfactory form – Whether judgment valid – Application by respondent to appeal that notice be struck out refused – Leave granted to appellant to amend notice of appeal after judge provides final reasons. R.S.C. Ch. I, R.59.04.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W.J. Martin, Q.C. and Mr N.J. Hopkins	Clayton Utz
For the Respondent	Mr P.N. Vickery, Q.C. and Mr R.J. Manly	Elizabeth Solomon

TADGELL, J.A.:

There is before the Court a summons filed by the respondent to an appeal, who was the plaintiff below, seeking an order that the notice of appeal served on the respondent by the appellant on 22 August this year be struck out on the grounds that it is not a notice of appeal which complies with r.64.02 or r.64.05(1) of the Rules of Court and is an abuse of process; alternatively that it is oppressive and vexatious.

The appeal is brought against the judgment given by Nathan, J. on 9 August this year in favour of the plaintiff and dismissing a counter-claim. On the same day his Honour adjourned the question of costs to the 4th of this month - next Monday.

The defendant was the builder of the Port Phillip Prison complex and engaged the plaintiff, an architect, as consultant. The plaintiff's claim was for fees alleged to be outstanding and the defendant counter-claimed for damages for breach of the consultancy agreement.

The trial began on 10 April this year and lasted the best part of three months. It was, according to the judge's reasons for judgment, conducted according to what he called the "limited trial procedure". To quote him:

"By consent the parties agreed to predetermined starting and finishing dates. The trial was conducted with the use of prepared witness statements, statements in reply and assistance from an electronic court book which was computerised in accordance with common court book numbers. Sitting time was divided equally between the parties."

Having reserved his decision on 29 June this year, his Honour began on 9 August by saying:
"... I will distribute shortly some 160 pages of written decision. Unfortunately, I set myself a time- table I now find I cannot quite complete. The judgment that I am about to deliver will be labelled "draft" but I propose to pronounce final judgment now. The reason for…

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: [2000] VSCA 158
Decision Date: 1 September 2000

CaseChat Overview and Summary

The matter of Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd involved a dispute between the parties over a construction contract. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the appellant had timely and appropriately served a notice of appeal, and if the notice could be amended after the final reasons for judgment had been provided.

The court considered whether the original notice of appeal was validly served despite being in an unsatisfactory form. The respondent sought to have the notice of appeal struck out due to the delay and the form of the notice. The court held that the original notice of appeal was served within the time allowed but was not in the proper form. The judge provided an intimation that final reasons would be forthcoming soon, but the notice of appeal was served before these final reasons were provided. The court found that the judgment was valid and the appeal was properly initiated, but the notice of appeal needed to be amended. The respondent's application to have the notice of appeal struck out was dismissed, and the appellant was granted leave to amend the notice of appeal after the final reasons had been provided.

The court ordered that the final reasons for judgment be provided and that the appellant be granted leave to amend the notice of appeal to ensure it complied with the requirements of the Rules of the Supreme Court. This decision ensures that the appeal process can proceed fairly, while also upholding the procedural requirements necessary for a valid appeal.

Orders