SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
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- Case
- [2021] ACTCA 25
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the decision dismissing the application for leave under section 237 of the *Corporations Act* was an interlocutory or a final order. This determination was crucial because it dictated whether the applicant required leave from the Court of Appeal to pursue an appeal.
The court considered the precedent set in *McEvoy v Caplan* [2010] NSWCA 115, which held that a dismissal of an application for leave under section 237 is an interlocutory decision. This conclusion was based on High Court authorities, which establish that the classification of a judgment as interlocutory or final depends on its strict legal effect in finally determining the substantive rights of the parties, rather than its practical consequences. The applicant argued that the expiry of a limitation period meant the order was effectively final, but the court found no authority to suggest *McEvoy* was incorrect and proceeded on the assumption that the order was interlocutory.
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
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Ratio Decidendi
Legal Principle Established
In the decision which the Applicant seeks leave to challenge, McWilliam AsJ dismissed the Applicant’s claim for an order granting him leave to bring proceedings on behalf of CBL pursuant to s 237 of the Corporations Act 2001 (Cth) (the Corporations Act). Her Honour described the application, and the circumstances under which her judgment and reasons for decision were delivered as follows: The reasons for decision were delivered on 28 May 2021. The application for leave to appeal was filed on 14 April 2021. Subsequently, after the reasons for decision were handed down, the Applicant sought orders including one for leave to file and serve an amended application for leave. That order was made by the Senior Deputy Registrar on 10 June 2021. There was a dispute as to whether that order was properly complied with. That dispute was, in an exercise of practical good sense by the parties, resolved by them agreeing to a procedural order which I made in the course of hearing the application for leave to appeal. In any event, the amended application was filed and served by the Applicant on 25 June 2021. The amendment merely corrected the date for hearing of the application and substituted a reference to a new supporting affidavit. Section 37E(4) of the Supreme Court Act 1933 (ACT) provides: The Applicant accepted that the NSW Court of Appeal in McEvoy v Caplan [2010] NSWCA 115; 78 ACSR 167 at [4] (McEvoy) had determined that a decision dismissing an application for leave under s 237 of the Corporations Act was an interlocutory, rather than final, decision. In coming to that conclusion, MacFarlan JA (Allsop and Beazley JJA agreeing) relied on the High Court decisions of Licul v Corney (1976) 180 CLR 213 and Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246. These authorities make it clear that the analysis of whether a judgment is interlocutory or final turns on the strict legal effect of the judgment in finally determining the substantive rights of the parties, and not the practical effect of the judgment having regard to the circumstances of the case (including the operation of a limitation law). Mr Erskine SC, who appeared on behalf of the Applicant, submitted that the practical effect of the expiry of the limitation period on 14 April 2021 meant that in reality the order dismissing the Applicant’s application at first instance was final. I was not referred to any authority suggesting that the conclusion in McEvoy was incorrect. Indeed, I did not understand Mr Erskine to be suggesting that I should not follow the decision in McEvoy. Rather, I understood his submission to relate to the consideration of whether a substantial injustice might be occasioned to the Applicant should leave to appeal be refused. In the circumstances, I proceed on the assumption that Order 1 made by McWilliam AsJ on 13 April 2021 was an interlocutory order, and that as a consequence, the Applicant requires leave of the Court of Appeal to appeal from that order. Mr Erskine read the following affidavits: