Glenmont Investments P/L v O'Loughlin & Ors (No 4) No. Scciv-91-2240

[2001] SASC 275

GLENMONT INVESTMENTS PTY LTD v O’LOUGHLIN & ORS (NO 4)

Civil (Ex Tempore)

1. DOYLE CJ           I will not repeat the background to the application which is before me today. That background appears in the short reasons I gave on 1 August 2001 in Glenmont Investments Pty Ltd v O’Loughlin & Ors (No.3) (Judgment No [2001] SASC 267).

2. The application now before me is for an order adjourning to a date to be fixed the hearing by the Full Court of an application by Glenmont to have the orders disposing of its appeal to the Full Court rescinded and to have aspects of that appeal reconsidered. I will call this application by Glenmont the re-opening application.

3. The application for the adjournment is made because Glenmont wishes to seek leave to appeal against my order of 1 August 2001, refusing an application by Glenmont to have a differently constituted Full Court consider the re-opening application. These applications and orders have been made in the context of an application by Glenmont for special leave to appeal to the High Court against the Full Court order disposing of the original appeal to the Full Court. That application to the High Court is listed for hearing next week.

4. My view, reflected in the reasons which I gave last week is that the Full Court that heard the original appeal should hear the re-opening application. As I indicated in those reasons, I considered that the contrary view is unsound and would produce confusion in the administration of justice.

5. I can see no reason why I should adjourn the application now listed before the Full Court merely because Glenmont wishes to pursue what I consider to be an incorrect course.

6. The other parties to the special leave application, or at least the Society, have an interest in having the special leave application and the re-opening application determined promptly. Adjourning the Full Court hearing might lead to the deferral of the special leave application and would certainly delay the hearing of the re-opening application.

7. Implicit in the adjournment application is the notion that the original Full Court should deal with the re-opening application in a way which would allow a differently constituted Full Court to first decide if it will consider the re-opening application. Because I am of the view that McAdam v Robertson (1993) 73 SASR 360 decides that a differently constituted Full Court should not consider the re-opening application, I take the view that the original Full Court should proceed to hear the re-opening application. To adjourn the hearing would be, in a sense, to invite a differently constituted Full Court to follow what I consider to be an incorrect course.

8. I do not wish to give the impression of an undignified race between two Full Courts to deal with the re-opening application, but my view is that it is clear that this application should be entertained by the original Full Court.

9. I am conscious that courts usually allow parties to pursue alternative remedies. Here, however, Glenmont has raised these matters very late in the piece and is now seeking a further adjournment for a purpose to which a Full Court decision, that is McAdam v Robertson, is opposed.

10. In my opinion, in all the circumstances, it is not appropriate to delay further  the consideration of the re-opening application. There is no other reason that I can see to adjourn the hearing. Accordingly, I dismiss the application made by summons dated 3 August 2001.