PRACTICE AND PROCEDURE – Incompetency – Application for application for leave to appeal to be struck out as incompetent – Applicant seeks to set aside ‘findings’ contained in seven paragraphs of judge’s reasons for making non-party costs orders – Whether common law right to appeal – No common law right to appeal – Whether findings constituted ‘determination[s]’ within the meaning of s 17(2) of the Supreme Court Act 1986 – Concept of ‘determination’ in s 17(2) does not extend to findings made – Application for leave to appeal struck out as incompetent.
PRACTICE AND PROCEDURE – Summary dismissal – Application for summary dismissal of application for leave to appeal – Where Settlement Deed entered into – Application for leave to appeal has no prospect of success by reason of Settlement Deed.
This application arises out of two group proceedings brought against the debenture trustee of Banksia Securities Ltd (‘Banksia’). Although those proceedings ultimately settled, and this Court approved a settlement sum of $64 million, it remitted for the determination of a trial judge the application by the litigation funder, Australian Funding Partners Ltd (the ‘funder’), for its funding commission and legal costs.[1]
The trial judge subsequently conducted an inquiry under s 29 of the Civil Procedure Act 2010 into the conduct of the applicant, Mr Norman O’Bryan, a former senior counsel, as well as various other persons alleged to be associated with the funder. After a protracted hearing which took place between…
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.
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AGLC
O'Bryan v Lindholm [2024] VSCA 130
Case
[2024] VSCA 130
Decision Date
CaseChat Overview and Summary
The matter of O'Bryan v Lindholm involved an application for leave to appeal from a decision concerning non-party costs orders. The applicant sought to set aside specific findings made by the judge in the context of these costs orders. The Supreme Court was tasked with determining whether the applicant had a common law right to appeal and whether the findings constituted 'determinations' within the meaning of s 17(2) of the Supreme Court Act 1986. Additionally, the court considered whether the application for leave to appeal had any prospect of success given the existence of a Settlement Deed.
The primary legal issue was whether the findings made by the judge in relation to the non-party costs orders could be appealed as they did not constitute 'determinations' under s 17(2) of the Supreme Court Act 1986. The court also needed to ascertain whether the applicant had a common law right to appeal. Furthermore, the court examined whether the Settlement Deed rendered the application for leave to appeal futile.
The court examined the concept of 'determination' as interpreted by the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic). The court held that the concept of a 'determination' in s 17(2) extended to a refusal of leave to institute proceedings, even if not embodied in an order. However, the court concluded that the findings made in the non-party costs orders did not constitute 'determinations' within the meaning of s 17(2). The court also found that there was no common law right to appeal such findings. Additionally, the existence of the Settlement Deed meant that the application for leave to appeal had no prospect of success.
The application for leave to appeal was struck out as incompetent. The court found that the applicant had no common law right to appeal the findings in question, and those findings did not constitute 'determinations' under s 17(2) of the Supreme Court Act 1986. Moreover, the Settlement Deed meant that the application for leave to appeal had no prospect of success.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
There has been some judicial consideration of the meaning of a ‘determination’ within s 17(2) by the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (‘Roy Morgan’).[38] The High Court held that the concept of a ‘determination’ in s 17(2) would extend to the primary judge’s refusal of leave to institute proceedings under s 148 of the Victorian Civil and Administrative Tribunal Act1998. In so doing the plurality stated: In this context, ‘determination’ must be read in s 17(2) as a word which embraces a wide variety of judicial decisions.[39] It is not necessary to attempt to chart the limits of that embrace. It is enough to say that it is a word which would be apt to apply to a refusal of leave under s 148 of the VCAT Act, even if that refusal was not embodied in an order of the Court (as it was here).[40][38](2001) 207 CLR 72; [2001] HCA 49.[39]cf The Commonwealth v Bank of NSW (1949) 79 CLR 497 at 625; [1950] AC 235 at 294 and Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 228; [1969] 1 AC 590 at 630, where the breadth of application of the word ‘decision’ in s 74 of the Constitution is discussed.[40]Roy Morgan (2001) 207 CLR 72, 78 [10] (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J agreeing at 87 [40]); [2001] HCA 49 (emphasis added, footnote in original). The Court also observed that, given s 17(2) was a provision which conferred jurisdiction upon a court, it was, on that account alone to be given no narrow construction, but to be construed with all the amplitude that ‘the ordinary meaning of its words admits.’[41][41]Ibid 78 [11]. The decision of City of Camberwell v Camberwell Shopping Centre Pty Ltd (‘Camberwell’)[42] also considered s 10(2), which was the predecessor to s 17(2).[43] In that case the trial judge had not pronounced orders, but there was an authenticated ‘judgment’ which stated that ‘the issues of liability raised by the council are not to be resolved in favour of the council and it is appropriate therefore to turn to the issues between the parties as to damages.’ The council sought to appeal this judgment, but the developer challenged the competency of the appeal. In particular, the developer contended that the determination was interlocutory such that leave to appeal must be obtained. [42][1994] 1 VR 163.[43]At the relevant time s 10(2) provided that ‘[u]nless otherwise expressly provided by this or any other Act, an appeal lies to the Full Court from any determination of the Court constituted by a Judge.’ By majority (Marks and Gobbo JJ, Fullagar J dissenting), the Court found that the judgment was a final determination. The majority considered that the trial judge had held that the council was liable to pay damages to the developer for breach of contract and that he intended to proceed and assess those damages.[44] However, beyond identifying that a determination was something different from an order,[45] the majority focused on whether the judgment was final or interlocutory (ultimately finding it to be final).[44]Camberwell [1994] 1 VR 163, 173.[45]Ibid 174.