Jemena Asset Management Pty Ltd v Coinvest Limited

[2009] FCA 542

FEDERAL COURT OF AUSTRALIA

Jemena Asset Management Pty Ltd v Coinvest Limited [2009] FCA 542

PRACTICE AND PROCEDURE – application for leave to appeal – whether decision attended by sufficient doubt – where issues were substantial and novel – where resolution of issues may avoid the parties incurring time and expense

Jemena Asset Management (3) Pty Ltd  v Coinvest Limited [2009] FCA 327
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

JEMENA ASSET MANAGEMENT PTY LTD (ACN 086 013 461), JEMENA ASSET MANAGEMENT (4) PTY LTD (ACN 009 641 187) and JEMENA ELECTRICITY NETWORKS (VIC) LIMITED (ACN 064 651 083) v COINVEST LIMITED (ACN 078 004 985)

VID 321 of 2009

TRACEY J
21 MAY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 321 of 2009

BETWEEN:

JEMENA ASSET MANAGEMENT PTY LTD
(ACN 086 013 461)
First Applicant

JEMENA ASSET MANAGEMENT (4) PTY LTD
(ACN 009 641 187)
Second Applicant

JEMENA ELECTRICITY NETWORKS (VIC) LTD
(ACN 064 651 083)
Third Applicant

AND: COINVEST LIMITED (ACN 078 004 985)
Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	21 MAY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicants be granted leave to appeal from the judgment of Marshall J given on 9 April 2009.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 321 of 2009

BETWEEN:

JEMENA ASSET MANAGEMENT PTY LTD
(ACN 086 013 461)
First Applicant

JEMENA ASSET MANAGEMENT (4) PTY LTD
(ACN 009 641 187)
Second Applicant

JEMENA ELECTRICITY NETWORKS (VIC) LTD
(ACN 064 651 083)
Third Applicant

AND: COINVEST LIMITED (ACN 078 004 985)
Respondent

JUDGE:	TRACEY J
DATE:	21 MAY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants seek leave to appeal from an interlocutory judgment of Marshall J given on 9 April 2009: see Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2009] FCA 327. In his judgment, his Honour answered a series of questions which the parties had asked the court to decide separately from any other question in the proceeding. Those questions related to the alleged inconsistency between various federal industrial instruments to which the applicants are party on the one hand and the Construction Industry Long Service Leave Act 1997 (Vic) on the other. Marshall J found that no relevant inconsistency existed.

2. The applicants wish to challenge his Honour’s orders and to have that challenge resolved before it is necessary for the parties to put on evidence going to the remaining issue raised by the statement of claim, which is whether the applicants employed persons to perform construction work in the construction industry within the meaning of the State Act.

3. The applicants have filed a draft notice of appeal.  It is sufficient for present purposes to observe that the draft notice of appeal raises substantial issues relating to the interrelationship of the federal instruments and the State Act, and whether inconsistency in the constitutional sense arises between them.

4. The respondent supports the application.  It accepts that the applicants have an arguable case on the grounds contained in the draft notice.  Having considered his Honour’s reasons, it is my view that sufficient doubt arises as to the correctness of his decision as to warrant it being reconsidered by a Full Court: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The issues which the applicants wish to raise on appeal are substantial and novel. It is appropriate that they be resolved before time and expense is incurred by all parties in dealing with the other significant issue raised by the proceeding. Depending on the outcome of the appeal, it may be that this other potentially substantial aspect of the matter will not need to be dealt with.

5. Leave to appeal will be granted.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        25 May 2009

Counsel for the Applicants:	Mr F Parry SC and Mr C B O'Grady
Solicitor for the Applicants:	Herbert Geer
Counsel for the Respondent:	Mr P Hanks QC and Mr S Moore
Solicitor for the Respondent:	Maddocks

Date of Hearing:	21 May 2009
Date of Judgment:	21 May 2009