FEDERAL COURT OF AUSTRALIA
Olson v Keefe [2019] FCA 339
Appeal from: Application for extension of time and application for leave to appeal: Olson v Keefe (No 2) [2017] FCA 1168
Application for leave to appeal: Olson v Keefe (No 3) [2018] FCA 2001
File numbers: NSD 27 of 2019
NSD 29 of 2019Judge: LEE J Date of judgment: 13 March 2019 Catchwords: PRACTICE AND PROCEDURE – application for extension of time – application for leave to appeal from interlocutory judgments – whether sufficiently arguable – summary dismissal of claim against one respondent – strike out – failure to disclose comprehensible pleaded basis for claims – failure to attempt to identify House v King error in determination of primary judge not to allow repleading of part of claim – Decor test not satisfied and applications dismissed Legislation: Australian Consumer Law ss 2, 20, 21
Corporations Act 2001 (Cth) s 1317AC
Federal Court Rules 2011 (Cth) 16.42Cases cited: Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2017) 272 IR 151
Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322
Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 472; (2006) 230 ALR 437
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41
House v King (1936) 55 CLR 499
In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318
John Alexander’s Clubs Pty Limited v White City Tennis Club Limited [2010] HCA19; (2010) 241 CLR 1
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
Nationwide News Pty Limited v Rush [2018] FCAFC 70
Olson v Keefe [2017] FCA 101
Olson v Keefe (No 2) [2017] FCA 1168; (2017) 122 ACSR 395
Olson v Keefe (No 3) [2018] FCA 2001
Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317
Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; (2001) 205 CLR 126
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596Date of hearing: 6 March 2019 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: Mr G Hatcher SC with Mr H W M Stitt Solicitor for the Applicant: Mills Oakley Counsel for the Respondents: Mr Y Shariff SC with Mr N Condylis Solicitor for the Respondents: King & Wood Mallesons ORDERS
NSD 27 of 2019
NSD 29 of 2019BETWEEN: KEVIN OLSON
Applicant
AND: MICHAEL THOMAS KEEFE
First Respondent
CORY LIPOFF
Second Respondent
HILCO MERCHANT RESOURCES LLC (and another named in the Schedule)
Third Respondent
JUDGE:
LEE J
DATE OF ORDER:
13 MARCH 2019
THE COURT ORDERS THAT:
1.The application for extension of time to seek leave to appeal from Orders 1-3 and 6 of the orders made by the primary…
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- AGLC
- Olson v Keefe [2019] FCA 339
- Case
- [2019] FCA 339
- Decision Date
CaseChat Overview and Summary
In the matter of Olson v Keefe, the court addressed applications made by Mr Olson for leave to appeal certain interlocutory judgments. These judgments were issued in the context of a larger dispute involving multiple respondents. The central issue before the court was whether Mr Olson had demonstrated that the orders in question were sufficiently arguable to warrant an appeal, and whether substantial injustice would result if leave to appeal were refused. Additionally, the court considered the adequacy of Mr Olson's attempts to replead parts of his claim, particularly in light of the Decor test.
The court meticulously reviewed Mr Olson's submissions and the grounds of appeal to assess whether they met the criteria for leave to appeal. It was determined that Mr Olson had not shown that the interlocutory decisions were attended with sufficient doubt to warrant reconsideration on appeal. Furthermore, the court found that Mr Olson had failed to articulate a comprehensible basis for his claims and had not adequately addressed the primary judge's decision not to allow repleading of parts of his claim. The Decor test was applied, and it was concluded that Mr Olson had not satisfied the necessary threshold for leave to appeal.
As a result, the court dismissed both the 2017 and 2018 applications for leave to appeal. The application for an extension of time to seek leave to appeal from certain orders was granted, but the application for leave itself was dismissed. The court further ordered that Mr Olson pay the respondents' costs of the applications. This decision underscores the importance of demonstrating substantial merit in interlocutory appeals and the necessity for clear and comprehensible pleadings.
The court meticulously reviewed Mr Olson's submissions and the grounds of appeal to assess whether they met the criteria for leave to appeal. It was determined that Mr Olson had not shown that the interlocutory decisions were attended with sufficient doubt to warrant reconsideration on appeal. Furthermore, the court found that Mr Olson had failed to articulate a comprehensible basis for his claims and had not adequately addressed the primary judge's decision not to allow repleading of parts of his claim. The Decor test was applied, and it was concluded that Mr Olson had not satisfied the necessary threshold for leave to appeal.
As a result, the court dismissed both the 2017 and 2018 applications for leave to appeal. The application for an extension of time to seek leave to appeal from certain orders was granted, but the application for leave itself was dismissed. The court further ordered that Mr Olson pay the respondents' costs of the applications. This decision underscores the importance of demonstrating substantial merit in interlocutory appeals and the necessity for clear and comprehensible pleadings.
Orders
Orders of the court
1. The application for extension of time to seek leave to appeal from Orders 1-3 and 6 of the orders made by the primary judge on 16 October 2017 be granted, but the application for leave to appeal be dismissed.
2. The application for leave to appeal from the orders made by the primary judge on 18 December 2018 be dismissed.
3. The applicant pay the respondents’ costs of the applications.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
There is no substantive injustice in denying leave, as Mr Olson is not shut out from seeking his Honour’s leave to articulate such an implied term correctly (to the extent that it adds anything to the case already pleaded): at [43].F CONCLUSION To the extent the draft grounds of appeal were articulated in submissions, they are dealt with above. For completeness, to the extent that they were not developed in submissions, an impressionistic review of them does not change my conclusion that Mr Olson has failed to demonstrate, on either the 2017 application or the 2018 application, that: (a) in all the circumstances, the decisions are attended with sufficient doubt to warrant their reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Mr Olson can continue to run his primary case and, if he wishes to replead aspects of his case which are open to him to run (such as an orthodox Secured Income implied term case), he can bring any such application for leave, which can then be dealt with by the docket judge. As to the 2018 application in particular, to allow further argument to occur on appeal in relation to the refusal of leave to advance a self-evidently defective pleading would not promote the just resolution of this dispute according to law, and as quickly, inexpensively and efficiently as possible. The appropriate order is that both the 2017 application and the 2018 application be dismissed. There is no reason why costs should not follow the event.
Ratio Decidendi
Legal Principle Established
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