Newington v Beneficial Finance Corp Ltd

[1999] FCA 1698

FEDERAL COURT OF AUSTRALIA

Newington v Beneficial Finance Corp Ltd (1999) FCA 1698

LEAVE TO APPEAL – Application for leave to appeal from final and interlocutory orders.

JEAN EDELWEISS ALAINE NEWINGTON, JACQUES BONNET AND GENMAN PTY LIMITED V BENEFICIAL FINANCE CORPORATION LIMITED

NG 213 OF 1990
NG 234 OF 1993

JUDGE:         BEAUMONT J
DATE:           3 DECEMBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 213 OF 1990 NG 234 OF 1993

BETWEEN:

JEAN EDELWEISS ALAINE NEWINGTON
First Applicant

JACQUES BONNET
Second Applicant

GENMAN PTY LIMITED
Third Applicant

AND:

BENEFICIAL FINANCE CORPORATION LIMITED
Respondent

JUDGE:

BEAUMONT J.

DATE OF ORDER:

3 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal against the orders made by Lehane J be expedited.

2.        Leave to appeal against Madgwick J’s interlocutory orders refused. 

3.With respect to the costs of the amended notice of motion, they will be costs in the appeal in relation to the orders made by Lehane J; and they will be costs in the principal proceedings in relation to the orders made by Madgwick J.  

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 213 OF 1990 NG 234 OF 1993

BETWEEN:

JEAN EDELWEISS ALAINE NEWINGTON
First Applicant

JACQUES BONNET
Second Applicant

GENMAN PTY LIMITED
Third Applicant

AND:

BENEFICIAL FINANCE CORPORATION LIMITED
Respondent

JUDGE:	BEAUMONT J.
DATE:	3 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. Before the Court is an amended notice of motion by the applicants dated 10 November 1999.  The matter was argued before me on 10 November when affidavit evidence was read on behalf of the applicants and some submissions were made.  However, the matter was not concluded on that date and I directed that it proceed by way of written submissions. 

2. At that stage Senior Counsel for Beneficial Finance handed up his written submissions and I directed that the applicants respond in writing.  Unfortunately, one of the applicants has in the meantime had to undergo major surgery and it was not possible in the circumstances for the applicants (who appear in person) to file written submissions.  However, I have heard oral argument from Ms Newington this morning.

3. The amended notice of motion seeks leave to appeal, first, from orders and a judgment of Lehane J made in 1997 and 1998.  An appeal against those orders was previously dealt with by a Full Court, and in those circumstances, in my view, it is appropriate that that application for leave to appeal also be dealt with by a Full Court (not necessarily the same bench as previously dealt with the matter).  (The appeal was discontinued on 5 March 1998.)  I have already made orders in that connection, without opposition, including an order that the application for leave to appeal be expedited.  I formally direct that this application for leave to appeal be listed for hearing before a Full Court and that the parties be prepared in the usual way to argue the appeal instanter (that is to say, on that day, should leave to appeal be granted).  I have already made the usual orders for submissions and for settling the draft index.

4. There is also before the Court an application for leave to appeal against interlocutory orders made by Madgwick J.  His Honour is presently part-heard in a trial of proceedings between the parties.  It appears that his Honour has refused to give leave to amend the applicants’ statement of claim so as to allege fraud, and has further refused to order discovery in that connection and has made certain costs orders in that behalf. 

5. The trial of the proceedings is due to resume next week.  Although I have been taken to portions of the transcript of the proceedings before his Honour in October, it appears from a reading of that transcript that the application for leave to amend came before him without the usual degree of formality, something that regrettably is inevitable when litigants in person endeavour to embark upon presentation of their own case in complex and legally technical litigation.  This is regrettable, but understandable.  It is equally understandable that his Honour has not published formal reasons for judgment in refusing to allow the amendment sought.  At the moment, the impression I have from the reading of the transcript and the material mentioned in argument today, is that the trial will resume next week and that there are other issues apart from the question of fraud that are still alive and which the applicants wish to pursue.  That being so, it seems to me at least logical that his Honour should proceed to deal with those live issues in the first instance.  If those issues were to disappear, or otherwise be resolved for or against the applicants, then the position with respect to the amendments sought would be much clearer than it presently is.  I am not persuaded that it is appropriate to grant leave to appeal at this stage.  The refusal by his Honour to grant leave to amend is, of course, an interlocutory order, which his Honour has the usual power to vary or review at any time, if in his Honour's view that is appropriate. 

6. I propose to refuse leave to appeal from Madgwick J’s orders, but on the footing mentioned in argument, that is to say that this is not to foreclose the possibility (about which I express no view at this point) that at a later stage, in the event that his Honour were to make an order to similar effect and the applicants wish to pursue the question at the appellate level such an application for a leave to appeal, if made at that stage, may be open.

7. I refuse leave to appeal against Madgwick J’s interlocutory orders.  The costs of the amended notice of motion will be costs in the appeal, so far as Lehane J’s orders are concerned.  So far as Madgwick J’s orders are concerned, they will be costs in the principal proceedings.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             3 December 1999

Solicitor for the Applicant:	The applicant, Ms Jean Newington, appeared in person
Counsel for the Respondent:	M Skinner
Solicitor for the Respondent:	R B Monteith Co
Date of Hearing:	3 December 1999
Date of Judgment:	3 December 1999