Quin v FBG Superannuation Ltd

[2000] VSCA 29

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No.6876 of 1998

ANTHONY CHARLES QUINN

Appellant (Plaintiff)

v

FBG SUPERANNUATION LTD. (ACN 005 027 707)

Respondent (Defendant)

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JUDGES:	PHILLIPS, CHARLES and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March, 2000
DATE OF JUDGMENT:	6 March, 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 29

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Practice and procedure - Appeal - Appeal of no practical utility - All issues of costs resolved - Appeal dismissed without hearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Miss J. Dodds-Streeton with Mr P. Willis	Nunan & Bloom
For the Respondent	Mr R.M. Garratt, Q.C. with Mr M.D. Wyles	Freehill Hollingdale & Page

PHILLIPS, J.A.:  (delivering the judgment of the Court):

1. In our opinion this appeal is now of no practical significance.  For us to proceed to hear and determine the appeal would involve the Court in delivering an advisory opinion. 

1. The appeal is over the appellant's claim to have been validly appointed to the board of the respondent for a period of three years commencing on 1 December 1996.  The respondent has always said that the appointment was ineffective because the appellant ceased to be relevantly employed in November 1996.  The respondent has asserted too that if the appointment was otherwise valid the appellant was removed as a director before 1 December 1996.  In consequence, the appellant has never been recognised by the respondent as a member of its board.  And now that the three year period of the claimed appointment has ended the respondent has contended in its Outline of Argument that the appeal is wholly academic.

1. This is not now a case in which there is any continuing dispute over costs.  When this appeal was called on for hearing this morning, the respondent by counsel announced that the respondent would not only not rely upon the order for costs made below in its favour and not seek an order for costs on the appeal, but would instead pay the costs of the appellant below and the costs of the appellant of this appeal to date.  Appellant's counsel was then constrained to concede that, as to costs at least, this appeal had no practical consequence.  Indeed, by the offer that was made, the appellant was achieving on costs all that he could achieve should his appeal succeed.

1. As to the principal issue sought to be raised on the appeal, that is, the issue apart from costs, a declaration was sought below that the appellant "is a director of" the respondent, the appellant seeking thus to establish in substance that he had been properly appointed to the respondent's board as from 1 December 1996 and that he was entitled to take up office as a director accordingly.  An injunction was also sought to restrain the respondent from precluding his doing so.  With the expiry of the three year term commencing on 1 December, we agree with respondent's counsel that the issue raised below is now of no practical consequence.  We merely add that the attempt by appellant's counsel this morning to amend the notice of appeal, to seek by way of relief on the appeal a retrospective declaration to cover the period from 1 December 1996 to 30 November 1999, does not advance the appellant's cause.

1. In submitting that we should none the less hear and determine this appeal, appellant's counsel referred us to the appellant's own affidavit sworn on 23 February last, in response to which the respondent filed an affidavit sworn by the respondent's secretary on 3 March.  Reference was made in particular to paragraphs 4 and 8 of the appellant's affidavit and, it must be said, counsel expanded on the contents - the somewhat brief contents - of those two paragraphs orally in the course of her argument.

1. Having given consideration to all that has been urged on behalf of the appellant we are unable to detect any reason why this appeal is not wholly academic.  For example, during her submissions counsel described the appellant's "reputation" as at stake, but she had to concede that no fault had been found with the appellant below, the result turning simply upon his relevant employment having ended in November 1996 and the construction of the relevant documents and statutes.  Counsel mentioned too the "possibility" of the appellant's seeking from the respondent, under the articles of association dealing with directors, some indemnity or other for the costs of his pursuing an inquiry of some sort into the respondent's handling of some of its affairs;  but the appellant can scarcely have been making those inquiries or incurring those costs as a director.  A fortiori the costs of some litigation - apparently for wrongful dismissal - which the appellant pursued before Hedigan, J., unsuccessfully.

1. The further facts asserted from the Bar table should of course have been placed on affidavit in proper time for this appeal, if they were to be relied upon today.  But even if we treat the contents of the appellant's affidavit as having been expanded along the lines indicated from the Bar table in argument we are still unable to see that this appeal is of any practical significance.  Accordingly there can be no justification for us proceeding to hear and determine it.

1. For these reasons the appeal will be dismissed.

(Discussion ensued as to costs.)

PHILLIPS, J.A.: 

1. The Court will make the following orders:

1.Order by consent that para.2 of the orders made by the Honourable Mr Justice Gillard on 10 December 1998 be set aside and that in lieu it be ordered by consent that the defendant do pay the plaintiff's costs of the proceeding on a party-party basis, including all costs reserved.

2.Order by consent that the respondent do pay the appellant's costs of this appeal on a party-party basis.

3.        Save as aforesaid, the appeal is dismissed.

1. Are counsel content with that?  Very well.  Adjourn to Wednesday.

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