Formfile Infosoft Pty Ltd v Fastfile Pty Ltd
[2003] VSC 56
•11 March 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 6662 of 2001
| FORMFILE INFOSOFT PTY LTD (ACN 074 598 585) | Plaintiff/Respondent |
| v | |
| FASTFILE PTY LTD (ACN 096 324 024) & OTHERS | Defendant/Appellant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2003 | |
DATE OF JUDGMENT: | 11 March 2003 | |
CASE MAY BE CITED AS: | Formfile Infosoft v Fastfile | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 56 | |
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Appeal from Masters - meaning of word “order” – distinction between “judgment” and “order” – interpretation of Rules 77.05 and 64.05 of the Supreme Court (General Civil Procedure) Rules 1996.
Supreme Court (General Civil Procedure) Rules 1996 – Rules 77.05 and 64.05
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Respondent | Mr G Hardy | Gerard A Conlan |
| For the Defendant/Appellant | Mr M Goldblatt | GWP Aarons & Co |
HER HONOUR:
On 26 November 2002 Master Evans made a decision in the following terms:
1.The application for security for costs is dismissed.
2.The Plaintiff file and serve further [and] better particulars of paragraphs 16, 25, 26 and 27 of its statement of claim in response to the [Defendants’] request dated 3 April 2002 by 4 pm on 17 December 2002.
3.The Plaintiff pay the Defendants’ costs of the application in so far as it relates to the request for particulars.
4.the Defendants pay the Plaintiff’s costs of the application in so far as it relates to security for costs.
On 2 December 2002 the defendants filed a notice of appeal pursuant to Order 77.05 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”) in the following terms:
Take Notice that the Defendants/Plaintiffs by counterclaim appeal against those parts of the orders made by Master Evans on 26 November 2002 by which it was provided that:-
1. The Defendants’ application for Security for Costs be dismissed.
2.The Defendants pay the Plaintiff’s costs insofar as it relates to Security for Costs.
3.The Plaintiff pay the Defendants’ costs insofar as it relates to Further and Better Particulars.
There was no cross-appeal.
The appeal came on for hearing before me in the Practice Court on 21 February 2003, and after hearing argument I dismissed the appeal in respect of security for costs and in respect of the payment of costs. Mr Goldblatt, for the defendants, submitted that that disposed of the issues before the Court.
Mr Hardy, for the plaintiff, submitted that the notice of appeal threw open the whole of the Master’s decision for consideration on the appeal, including the obligation imposed on his client to provide further and better particulars. He submitted that this followed from the distinction between Rule 77.05, dealing with appeals from Masters, which provides that:
. . . any person affected by any judgment given or order made by a Master under any Chapter of the Rules of the Supreme Court may appeal to a Judge.
and Rule 64.05 dealing with appeals to the Court of Appeal, which provides that:
A notice of appeal shall state whether the whole or part only and which part of the decision of the court of first instance is complained of . . .
He sought to make submissions as to why the Master’s order for the provision of further and better particulars should be set aside.
The distinction between the two requirements is not, in my view, relevant to Mr Hardy’s submission. The decision [1] of a court may, and normally does, include more than one “order”. It is common practice to refer to the whole decision as an “order”. It is also common practice to refer to each component [2] of a decision as an “order”, as for example in the request commonly made to a court “that there be an order that the matter be struck out with no order as to costs.” Thus the word “order” is used to refer to the decision as a whole and also to the separate components of that decision. Mr Hardy submitted that the separate orders were properly referred to as “paragraphs”. He produced no authority for his submissions.
[1]to use a neutral word
[2]to use a neutral word
I note that Rule 77.05(2) provides that “No . . . order of a Master as to costs only shall be the subject of appeal under paragraph (1) except by leave of a Judge or the Master.” It would appear that in that sub-Rule the word “order” is intended to refer to the whole decision of the Master.
In the case of Legal Practitioners Complaints Committee v A Practitioner [3] the Full Court of the Supreme Court of South Australia was concerned with the meaning and effect of the expression “judgment or order” appearing in section 50 of the Legal Practitioners Act 1981 (SA). King CJ said [4] :
There is no completely satisfying definition of either “judgment” or “order” and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. Fortunately it is unnecessary for present purposes to make such a distinction . . .
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders . . .
Olsson J said [5] :
. . . it is to be recalled that the expressions “judgment” and “order” have a technical, legal signification. Essentially they embrace formal decisions, binding on and enforceable between the parties, which dispose of and determine a specific matter or question in proceedings.
[3](1987) 46 SASR 126
[4]at 127
[5]at 137
Those passages, while not directly in point, are consistent with the view which I have already expressed. The difficulty of distinguishing between a “judgment” and an “order” is paralleled by the difficulty arising from the use of the word “order” in two senses: in the sense for which I have here used “decision” and in the sense for which Mr Hardy seeks to use “paragraph”.
I am satisfied that the decision of the Master contained four orders, and that it was appropriate for the appellant to appeal, as it did, against only three of those orders. I find accordingly that there is not, by virtue of the Notice of Appeal with which I am concerned, any appeal on foot against the Master’s order that the plaintiff provide further and better particulars of the statement of claim.
Counsel may wish to make submissions as to costs.
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