French Caledonia Travel Service Pty Ltd v Elatri, D
[1992] FCA 353
•22 MAY 1992
Re: FRENCH CALEDONIA TRAVEL SERVICE PTY LIMITED trading as CONNECTION
HOLIDAYS
And: DANIELLE ELATRI
No. N G160 of 1992
FED No. 353
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Gummow(1) and Foster(1) JJ.
CATCHWORDS
Practice and Procedure - Ability to seek leave to appeal from an interim order - difference between appealable interlocutory judgment and mere reasons to support a finding with regards to an issue of liability - meaning of "judgment, decree or order".
HEARING
SYDNEY
#DATE 22:5:1992
Counsel for the Appellant: D.K. Catterns S.J. Goddard
Solicitors for the Appellant: Michie, Shehadie and Co.
Counsel for the Respondent: C.A. Evatt J.C. Gibson
Solicitors for the Respondent: M. Duncan and Associates
ORDER
THE COURT ORDERS THAT:
1. Leave to appeal from the judgment of Mr Justice Bryson, of the Supreme Court of New South Wales, Equity Division, given up on 26 March 1992 be refused.
2. The applicant pay the cost of the respondent of the motion for leave to appeal.
3. The appellant file and serve by 4 pm today notice of motion for leave to appeal from the order of Mr Justice Bryson, made on 1 May 1992.
4. Leave to appeal from the order of Mr Justice Bryson made on 1 May 1992 be refused.
5. The applicant pay the costs of the respondent of the second motion for leave to appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This an application for leave to appeal from what is asserted to be an interlocutory judgment of a Judge of the Supreme Court of New South Wales in a copyright infringement action. At the commencement of the hearing counsel for the respondent, who is the plaintiff in the Supreme Court, objected to the competency of the application on the ground that there was no judgment, interlocutory or otherwise, to found an appeal.
The proceeding before the learned primary Judge (Bryson J.) was not the subject of any formal order of his Honour that the issues of liability and relief be determined separately. Rather, his Honour heard evidence and argument, limited, it appears, to the question of liability. Thereafter, on 28 February 1992, he gave oral reasons in support of his finding that the issue of liability be resolved in favour of the respondent. His Honour then said: "In my view the plaintiff is entitled to a declaration in the terms of claim 1 in the summons" and proceeded to give directions for the preparation of the remaining questions for trial, including directions with respect to discovery of documents and the filing by the parties of statements of the nature of their respective cases.
His Honour published his reasons supporting his finding on liability on 25 March 1992. On 28 April the respondent brought the matter back before his Honour for further directions. His Honour said on that occasion, amongst other things, the following:
"It will be seen at page 7 of the judgment which I gave on 28 February 1992 that I was of the
view that the plaintiff is entitled to a
declaration in the terms of claim 1 in the
summons. I have not yet made a declaration or
anything which could be regarded as a final
order or part of a final order. This course has been quite deliberate. I prefer to complete the hearing of the case before me and make all
orders which I am called upon to make before
parting with the case."
An appeal from an interlocutory judgment of the Supreme Court of a State to this Court requiring that leave to appeal be granted by this Court: s. 24(1A) of the Federal Court of Australia Act 1976.
The word judgment is defined by s. 4 of that Act as meaning "a judgment, decree or order, whether final or interlocutory, or a sentence." Those words have the same meaning as the words: "judgments, decrees, orders and sentences" in s. 73 of The Constitution: see Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 356, a judgment of the Full Court of this Court and Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 especially at p 399. See also Mellifont v The Attorney-General (Queensland) (1991) 104 ALR 89.
As this is an application for leave to appeal, the Court must be satisfied that the applicant for leave has established that there is an interlocutory judgment susceptible of appeal. The Court is not so satisfied. In our opinion, all that his Honour did, so far as presently relevant, was to give reasons to support a finding on the issue of liability in favour of the respondent and expressly declined to make any order or declaration at that stage to give effect to his finding.
The order of the Court is that the application for leave to appeal dated 26 March 1992 be dismissed with costs.
The applicant, French Caledonia Travel Service Pty Limited trading as Connection Holidays, now seeks leave to appeal from an order of Bryson J. made on 1 May 1992, whereby his Honour directed that the matter of an inquiry as to damages proceed to a hearing at a date to be fixed. That order is an interlocutory judgment within the meaning of s. 24(1A) of the Federal Court of Australia Act 1976 and the problems of competency mentioned earlier do not arise. His Honour's order was designed to prepare the remaining issues in the case for hearing and was essentially the exercise by him of his discretion. We repeat the words used by his Honour on 28 April 1992 when he said:
"I prefer to complete the hearing of the case
before me and make all orders which I am called upon to make before parting with the case."
The order that is under challenge was obviously one pursuant to that expression of opinion by his Honour. In our opinion, the exercise by his Honour of his discretion has not been shown to have miscarried. In due course when the case is finally determined on all issues the applicant for leave will be entitled to apply to this Court as of right from the judgment of Bryson J. or other trial Judge. The findings on liability, damages, and other issues in the case will then be susceptible of review.
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