Reid, C.K. v Nairn, W.I

[1985] FCA 105

C A T C H W O R D S

PRACTICE AND PROCEDURE - Appllcatlon for leave to appeal from a

dlscretionary lnterlocutorp order - conslderations involved -

whether "grave or powerful reason" for appellate court o

Interfere - whether alleued thar: wronF prlnciple applied or

substantial in?usticr worked - reluctance crf appellate courts to

revlew deciclons pertalnlnu to practlce and procedure.

Federal Court of Australia Act 5.24 (1A)

-TOPHER	KIDMAN REID	V	&LLIP-M	I A N NAIRN
Fisher J. Adelalde

37th March 1985.

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) NO.G45 of 1994

DIVISION GENERAL )

B E T W E E N :

CHRISTOPHER KIUMAWN

REIIj

Applicant

- and -

WILLIAN TAN NA1P.N

Respondent

O R D E R

FISHER	ORDER	MAKING	JUDGE	J.
WHERE MADE
-	D
THE COURT ORDERS THAT:

L. The application for leave to appeal be refused.

2. The question of costs be reserved.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY	)
)

DIVISION GENERAL i

E E T W E E N :

>-FFllCXlt

- and -

WILLISM IN1 NAIRN

Respondent

2 7 E.LU?CH 1985

REASONS FOR DZC13ION

FISHER J.: In this matter counsel f o r the applicant yesterday

souqht leave to appeal from my declslon granting hlm the rlqht to

obtain discovery lmited to cerrain specliled toplcs. I refused his application and he indicated that he proposed to renew it, as he contended he was entitled to do, before the Full Court whlch

has been assembled for Tuesday of next week In Adelaide.

The Federal Court of Australla Act 1976 ("the Act") was

amended in 1984 to provide that appeals from interlocutory

2 .

ludgments of slngle Judges shall only be brought with leave.

Sectlon 2 4 ( 1 A ) was the amended section and It provides

as follows:

"(1A) An appeal shall not be brought from a Iudgment

referred to In sub-section !l) that 1s an lnterlocutory

ludgment unless the Court	or a	Judae glves leave to
appeal.

There 1s no doubt hat my Judament was of an

mterlocutory nature, 3nd chere was no contentlon to the

contrary. Counsel were unable to polnt to any declslon of this

Court since the 1384 amendment lndlcatlng the practlce which the

Court adopted or proposed to adopt In hearlnq an appllcatlon

under thls sectlon. In partlcular it is uncertain whether an

intendins appellant, havlng been refused leave by the trlal

Judge, may renew hls appllcatlon before the Full Court. I

therefore propose glvlng reasons for my refusal to grant leave,

so chat these reasons may be available to the appllcant and the

Full Court should the appllcant be requlred to appeal,	or seek
leave to appeal, agalnst my refusal to grant leave.

The grounds upon which I made on Monday the llmited

order for discovery are set out In my reasons for judgment,

handed informally to the partles on that occaslon and in a form

certlfled by my assoclate yesterday. The applicant's complalnt

1s that the orders I have made are too narrowly drawn and too

restrlctlve. He contends that I have erred In prlnciple m that

3 .

once I have found some evldence in support of one issue In the

proceedings, his entitlement is to have discovered all documents

In the possesslon of the respondent relatlng to all issues raised

by his appllcatlon. His submission was that once he established

that there was some evidence upon whlch an order for dlscovery

could ne made, he was entitled to general discovery under	0 15
r 1.

This would entail qranting the applicant the rlght to

have discovered documents relative to issuss in support of which

there 1s not a tictie of evidence. He was unable to support this

alleged principle with any authority and I was not prepared to

accept it in the absence of such support.

Counsel was prepared to acknowledge that In the ultlmate

I made the particular orders in the exercise of my discretion.

He was unable to point to any other error of principle, but

relied upon the submission that his cllent was entitled as of

right to have	me exercise my	discretlon In favour of a wlde order
of discovery.

It is however my view that the orders which I made were,

to the extent at	least of the applicant's challenge, ouders made
in the exercise	of my discretion in a matter of practice or

procedure. I dld not understand counsel to contend to the

contrary. It follows that I should consider the granting of

leave to appeal if there appears to be a "grave or powerful

4.

reason" why an appellate court should interfere. It 1s my

understandlng that an appellate court will only interfere wlth

the exercise of a trial ludge's decision if "a clear case has

been made out that he has acted on some wrong prlnclple or has

made an order which works a substantlal Injustice to one of the

Fartles". De Mestre v A.P. Hunter Ptv. Ltd. (1960) 77 W . N .

01.S.W.) 143 per Hardle A . Z . at page 147. This reluctance whlch

It 1s accepted an appellate court wlll exerclse In revlewlng declslons pertainlnq to practlce and procedure 1s referred to by the High Court in Adam P. Brot-,m Male Fashions P t v . Ltd. v Phllllp

Morrls Incorcorated (1981) 35 A.L.H. 625 at p.629. I draw

attention to the statement of Sir Frederlck Jordan in Re F.B.

Gilbert (1946) 46 S . R .	(N.S.W.) 318 at 323 approved by the Hlqh
Court in that case.

I do not see counsel for the applicant. as contendlng that I have clearly acted upon a wrong prlnclple. Certainly he

has not identified any authority to support his alleged principle

nor has he specified the grounds upon which he contends that a substantlal injustice has In the clrcumstances been worked to his

cllent. He did however refer to me portion of the reasons for

judgment of Brennan J. in Alister and Others v The Dueen an

unreported decision of the Hlgh Court delivered on 2 Uecemoer

1983. At page 55 of the reasons of the court he referred to the

proper attltude of the court when a party was engaglng m a

flshlng expedition. He sald:

5 .

"That circumstance shows the subpoena to have been

merely the hook cast In a flshing expedltion In the

hope of catchlna somethlng worthwhlle to the defence

case. When the defence undertakes a flshing

espedltlon, should the Court abstain from lnspectlng

documents In the possesslon of the Crown for whlch

public interest immunity has been clamed? In Air

Canada v Secretary of State for Trade C19831 2 W.L.H.

494, a case in whlch an oblectlon to productlon was

taken In proper form, it was accepted chat the Court

would lnspect documents with a vlew to orderlng their

production If, to clte Lord Wilberforce's crlterron (at

p.529)	there were 'some concrete around for bellef
whlch	Lakes the case beyond 3. mere "flshlng"

expedltlon': that 1s. some concrete ground for

bellevmg that the documents contained rnaterlal

substantlally useful to the party seeklng dlscovery."

However the clrcumstances wlth whlch hls Honour was

there deallnu are so different from those of the present matter that I do not see that che appllcsnt galns any support from that dicta.

Difficult as It 1s to view the matter obIectxvely, I am

of the oplnlon that an appellate court is unllkely to see thls as

a matter in which to Intervene. I therefore dlsmlss the

appllcatlon for leave to	appeal and reserve the questlon	of
costs.