Jerome Properties Pty Ltd v Hamilton - [2021] SASCA 77

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
JEROME PROPERTIES PTY LTD & ORS v HAMILTON & ORS
[2021] SASCA 77
Judgment of the Court of Appeal
(The Honourable Justice Doyle and the Honourable Justice Livesey)
10 August 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
The applicants seek leave to appeal an order made by a single Judge, refusing their oral application for the proceedings the subject of the proposed appeal, having been commenced by originating application and affidavit, to proceed by way of pleadings.
Held (by the Court), refusing the application for leave to appeal:
1. In circumstances where the Judge’s decision was discretionary and related to a matter of practice and procedure, and did not preclude a later application and order that the matter proceed on pleadings, her Honour’s decision was not attended by sufficient doubt to warrant a grant of leave, and would not occasion substantial injustice to the applicants if left to stand.
Uniform Civil Rules 2020 (SA) r 82.1, referred to.
McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; Commonwealth v Saadat (2019) 134 SASR 184; Draoui v Le [2021] SASCA 33, considered.

JEROME PROPERTIES PTY LTD & ORS v HAMILTON & ORS
[2021] SASCA 77

Court of Appeal – Civil: Doyle and Livesey JJA

THE COURT: The applicants (the Jerome parties) seek leave to appeal an order made by Auxiliary Justice Bochner on 15 June 2021, refusing an oral application by the Jerome parties that the proceedings, having been commenced by originating application and affidavit under r 82.1 of the Uniform Civil Rules 2020 (SA), proceed by way of pleadings.
For the reasons which follow, we refuse the application for leave to appeal. The appeal raises a matter which is quintessentially a matter of practice and procedure, involving an order made in the management of relatively complex commercial proceedings, and in respect of which the Judge had a very broad discretion. Given the principles of appellate restraint that would govern the appeal, we are not satisfied that her Honour’s decision was attended by sufficient doubt to warrant a grant of leave. More fundamentally, because her Honour’s decision does not preclude a later application and order that the matter proceed on pleadings, it cannot be said that any substantial injustice would be caused if the decision were left to stand.
Background
These proceedings were commenced by the respondents to the proposed appeal, Airlie Hamilton and Alexandra Hamilton (together, the Hamiltons). The proceedings seek orders, inter alia, for the removal of certain corporate entities as trustees of two discretionary trusts, pursuant to s 36 of the Trustee Act 1936 (SA) (the Trustee Removal proceedings). The respondents in the Trustee Removal proceedings are JJR Investment Holdings Pty Ltd…

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.

Continue reading Jerome Properties Pty Ltd v Hamilton

Details

AGLC: Jerome Properties Pty Ltd v Hamilton [2021] SASCA 77
Case: [2021] SASCA 77
Decision Date: 10 August 2021

CaseChat Overview and Summary

The applicants, the Jerome parties, sought leave to appeal a discretionary decision of a judge concerning practice and procedure in complex commercial proceedings. The underlying proceedings, commenced by Airlie and Alexandra Hamilton, sought the removal of corporate entities as trustees of discretionary trusts. The Jerome parties, joined as interested parties, complained that the affidavits filed by the Hamiltons contained irrelevant material and documents subject to claims of legal professional privilege, confidentiality, or commercial sensitivity, and sought orders for their removal.

The central legal issue before the Court was whether the judge's discretionary decision, which did not order the removal of the disputed documents from the court file, was attended by sufficient doubt to warrant granting leave to appeal and whether its refusal would occasion substantial injustice to the applicants. The Court was required to consider the principles of appellate restraint applicable to discretionary decisions in matters of practice and procedure.

The Court reasoned that the judge's decision involved a broad discretion in managing complex commercial proceedings. Applying principles of appellate restraint, the Court was not satisfied that the decision was attended by sufficient doubt to justify granting leave to appeal. Furthermore, the Court found that because the judge's decision did not preclude a later application for the matter to proceed on pleadings, it could not be said that any substantial injustice would be caused if the decision were left to stand.

Consequently, the Court refused the application for leave to appeal.

Orders

Orders of the court

Held (by the Court), refusing the application for leave to appeal:

1. In circumstances where the Judge’s decision was discretionary and related to a matter of practice and procedure, and did not preclude a later application and order that the matter proceed on pleadings, her Honour’s decision was not attended by sufficient doubt to warrant a grant of leave, and would not occasion substantial injustice to the applicants if left to stand.

Background

Background to the litigation

For the reasons which follow, we refuse the application for leave to appeal. The appeal raises a matter which is quintessentially a matter of practice and procedure, involving an order made in the management of relatively complex commercial proceedings, and in respect of which the Judge had a very broad discretion. Given the principles of appellate restraint that would govern the appeal, we are not satisfied that her Honour’s decision was attended by sufficient doubt to warrant a grant of leave. More fundamentally, because her Honour’s decision does not preclude a later application and order that the matter proceed on pleadings, it cannot be said that any substantial injustice would be caused if the decision were left to stand.Background These proceedings were commenced by the respondents to the proposed appeal, Airlie Hamilton and Alexandra Hamilton (together, the Hamiltons). The proceedings seek orders, inter alia, for the removal of certain corporate entities as trustees of two discretionary trusts, pursuant to s 36 of the Trustee Act 1936 (SA) (the Trustee Removal proceedings). The respondents in the Trustee Removal proceedings are JJR Investment Holdings Pty Ltd and Westfield Station Nominees Pty Ltd (together, the Trustee companies). The present applicants, the Jerome parties, are a group of 32 companies named as interested parties in the Trustee Removal proceedings. Deborah Hamilton (the mother of the Hamiltons) was joined as an interested party. Her sister, Shauna Roche, was also joined as an interested party. Another sister, Fiona Roche, was joined as a respondent. As mentioned, the Hamiltons commenced the Trustee Removal proceedings by originating process and affidavit under r 82.1. They filed two voluminous affidavits in support of their claim, being affidavits sworn by Airlie Hamilton and Deborah Hamilton. In combination, those affidavits run to approximately 300 pages in length, and are accompanied by approximately 4,000 pages of documentary exhibits. They cover a wide range of dealings involving the various companies and family members involved in the proceedings over a lengthy period of time. The Jerome parties contend that it is not readily apparent from the affidavits how the detail of the matters addressed is said to support the relief sought. Although still at an early stage in their procedural life, the Trustee Removal proceedings have already become complex, and have generated a lot of procedural activity and heat. From the outset, the Jerome parties complained that the affidavits of Airlie Hamilton and Deborah Hamilton, as well as containing matters which are not of any apparent relevance, also include a substantial number of documents in respect of which they assert claims of legal professional privilege, confidentiality or commercial sensitivity. They complained that the affidavits, or at least many of the documents exhibited to the affidavits, should thus be uplifted or removed from the file. The Jerome parties ultimately brought an application seeking orders to this effect. Fiona Roche, who had been joined as a respondent upon her own application, and had been making similar complaints about the affidavits and their exhibits, also brought an application seeking similar orders in respect of the affidavits. It is convenient to refer to these applications as the Documents applications. The Jerome parties also issued separate proceedings seeking to enforce their contended rights of confidentiality in respect of a number of the documents attached to the affidavits (the Delivery Up proceedings).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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