Qube Ports Pty Ltd v McMaster

Qube Ports Pty Ltd sought leave to appeal against a judgment of North J given on 4 December 2015. McMaster objected to the competency of the appeal on the basis that there was no appealable order. The court had to determine whether the order made by North J on 5 August 2014 for a separate hearing and determination of the “Question of Liability” could be treated as an appealable order. The court also had to consider whether the absence of a formal order incorporating the judge’s conclusions could be treated as a mere procedural oversight.

The court held that ordinarily an appeal does not lie unless an order is made. An expression of reasons, for example, does not give rise to a right of appeal. However, Qube argued that the order made by North J could be treated as an appealable order because it separated the “Question of Liability” from other issues in the proceeding. The court noted that the requirements of O 29(3) no longer apply. It held that the reasoning in Town, as explained in Landsal, had no application in this case because North J was not required to make an order incorporating his conclusions. The absence of such an order could not be treated as a mere procedural oversight or an unimportant formality.

The court dismissed Qube’s application for leave to appeal. It held that there was no relevant order of 4 December 2015 in respect of which an appeal lies. The hearing was adjourned to a directions hearing fixed for 3 February 2016, at 10.15am.