Rossmick No 1 Pty Ltd v Bank of Queensland Limited

[2008] FCA 482

FEDERAL COURT OF AUSTRALIA

Rossmick No 1 Pty Ltd v Bank of Queensland Limited [2008] FCA 482

ROSSMICK NO 1 PTY LTD (ACN 110 291 015), ROSSMICK NO 2 PTY LTD (ACN 113 008 352), MICHAEL BRADLEY, ROSS CHAPMAN, LUKE NOLAN, JUDE FINANCIAL SERVICES PTY LTD (ACN 115 763 481), RUSSELL JUDE EDWARD GARDNER, PENELOPE ANN GARDNER, SME BUSINESS ASSIST PTY LTD (ACN 108 524 232) and SCOTT ROLFE MCCOY v BANK OF QUEENSLAND LIMITED (ACN 009 656 540), DAVID LIDDY, DONNA QUINN, GARRY ALLSOP and INDUSTRIAL COURT OF NEW SOUTH WALES

QUD 60 OF 2008

SPENDER J
8 APRIL 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 60 OF 2008

BETWEEN:

ROSSMICK NO 1 PTY LTD (ACN 110 291 015)
First Applicant

ROSSMICK NO 2 PTY LTD (ACN 113 008 352)
Second Applicant

MICHAEL BRADLEY
Third Applicant

ROSS CHAPMAN
Fourth Applicant

LUKE NOLAN
Fifth Applicant

JUDE FINANCIAL SERVICES PTY LTD (ACN 115 763 481)
Sixth Applicant

RUSSELL JUDE EDWARD GARDNER
Seventh Applicant

PENELOPE ANN GARDNER
Eighth Applicant

SME BUSINESS ASSIST PTY LTD (ACN 108 524 232)
Ninth Applicant

SCOTT ROLFE MCCOY
Tenth Applicant

AND:

BANK OF QUEENSLAND LIMITED (ACN 009 656 540)
First Respondent

DAVID LIDDY
Second Respondent

DONNA QUINN
Third Respondent

GARRY ALLSOP
Fourth Respondent

INDUSTRIAL COURT OF NEW SOUTH WALES
Fifth Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	8 APRIL 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Leave to appeal from the judgment of Greenwood J on 12 March 2008 in QUD 227 of 2007 is granted.

2.The appeal be based on grounds 1 to 4 of the Amended Draft Notice of Appeal.

3.The respondents pay 80 per cent of the applicants’ costs of the application for leave to appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 60 OF 2008

BETWEEN:

ROSSMICK NO 1 PTY LTD (ACN 110 291 015)
First Applicant

ROSSMICK NO 2 PTY LTD (ACN 113 008 352)
Second Applicant

MICHAEL BRADLEY
Third Applicant

ROSS CHAPMAN
Fourth Applicant

LUKE NOLAN
Fifth Applicant

JUDE FINANCIAL SERVICES PTY LTD (ACN 115 763 481)
Sixth Applicant

RUSSELL JUDE EDWARD GARDNER
Seventh Applicant

PENELOPE ANN GARDNER
Eighth Applicant

SME BUSINESS ASSIST PTY LTD (ACN 108 524 232)
Ninth Applicant

SCOTT ROLFE MCCOY
Tenth Applicant

AND:

BANK OF QUEENSLAND LIMITED (ACN 009 656 540)
First Respondent

DAVID LIDDY
Second Respondent

DONNA QUINN
Third Respondent

GARRY ALLSOP
Fourth Respondent

INDUSTRIAL COURT OF NEW SOUTH WALES
Fifth Respondent

JUDGE:	SPENDER J
DATE:	8 APRIL 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal.  From the submissions that have been made today, the consequences, if the judgment appealed from is challengeable and leave is not granted, are serious in that, amongst other things, the Bank of Queensland is seeking orders, the effect of which is to prevent the question being pursued in other proceedings.  That lends importance to the question. 

2. I am not deciding these various matters. In particular, I am not deciding the minutiae of the differences in submissions about whether the paragraphs struck out are, or are not, matters confined solely to questions of law or argument, or whether, in fact, they involve some factual aspects which are part of the totality of the whole consideration. 

3. Nor am I concerned with resolving the questions about whether, in truth, his Honour Justice Greenwood found as is alleged in ground 4 of the Amended Draft Notice of Appeal.  All I am concerned about is whether there is an arguable ground for appeal which would satisfy the tests in Niemann v Electronic Industries Ltd (1978) VR 431.

4. In those circumstances, it seems to me that there is no real utility to be gained by my adjourning this matter to give detailed and considered reasons in respect of those matters, which I think are essentially peripheral to the task that I have today.  What I propose to do is grant leave to appeal, and the appeal to be based on grounds 1 to 4 in the Amended Draft Notice of Appeal.

5. I will give short reasons for why I think leave should be granted, but they are to be read in the course of discussions I have had with counsel during this morning. 

6. The fundamental reason is this: it is at least arguable, in my view, that there was an agreement by the parties, to which his Honour Justice Greenwood was complicit, that the question of striking out paragraphs of the defence was a matter which would not be determined by his Honour on the occasion of his considering whether the matter should be cross-vested, but was to be heard at a later time where the parties would have an opportunity to make submissions concerning that matter.  It is arguable that that was the position, notwithstanding, I am told, that there were extensive written submissions touching on the question of whether paragraphs should or shouldn’t be struck out.

7. It seems to me to be plain, from a close reading of the transcript, (in particular that which commences the proceedings before his Honour at page 1 of the transcript and the conversations between counsel and his Honour which are recorded at page 44 of the transcript for the first three-quarters of that page) that it is at least arguable that the applicants have been denied the right to be heard in respect of the strike out questions. 

8. It also seems to me to be arguable that the conclusion of his Honour that the question of whether the contract is one to which an independent contractor is a party was simply a matter of construction of the agreements, and was not one to be considered on an analysis of factual matters concerning the totality of the relationship between the parties (as the applicants for leave contended before his Honour) was wrong.

9. I should say no more about it, but that I think that the contention of the applicants for leave is, at least, arguable. The conclusion on that very important issue has significant and important consequences for the resolution of the controversy between the parties.  In that respect also, it seems to me, that it is proper to grant leave.    

10. The principles as to the grant of leave are not in dispute.  I have sought to apply those principles, as expressed in Niemann and other cases since.  It seems to me to be plain that this is an important case which warrants the consideration of a Full Court of the Federal Court, and I therefore grant leave. 

11. On the question of costs, leave was resisted, but there is one other relevant matter.  The written submissions by the applicants for leave conclude by saying:

    The applicants concede the any appeal on the cross-vesting decision should be made to the High Court of Australia and do not intend to pursue this part of the appeal before the Full Federal Court.

12. However, the Amended Draft Notice of Appeal in paragraph 5 and following sought to raise that question.  Mr Moses, counsel for the respondents on the application for leave, tells me the competence of any appeal on the cross-vesting order to the Full Court of the Federal Court was the subject of correspondence by his solicitors with the solicitors for the applicants for leave.  The question is whether, in view of that history, and the very late abandonment of that issue as a ground of appeal to the Full Court of the Federal Court, there should be some modification to the ordinary order as to costs. 

13. I think justice requires there be some acknowledgment of the conduct of the applicant for leave in respect of this issue.  Apportioning costs is always difficult, particularly when it is a matter that has been seriously taken, and then abandoned just before the hearing. 

14. In all the circumstances, I think that a fair order is that the applicant for leave have 80 per cent of the costs of its proceedings on the application for leave.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:
Dated:        11 April 2008

Counsel for the Applicants:	Mr N Cotman SC
Solicitor for the Applicants:	McCabe Terrill Lawyers
Counsel for the Respondents:	Mr A Moses
Solicitor for the Respondents:	Home Wilkinson Lowry

Date of Hearing:	8 April 2008
Date of Judgment:	8 April 2008