Rouse v IOOF Australia Trustees Ltd (No 5)

ROUSE & ORS V IOOF AUSTRALIA TRUSTEES LTD (NO. 5)

[1999] SASC 294

LANDER J. This is an application brought by the defendant seeking orders;
That the time within which it may apply for leave to appeal against an order made by me on 30 March 1999 that the defendant deliver up all copies of exhibit “LJH10” not otherwise delivered up in accordance with the Chief Justice’s order of 23 July 1998 be extended.

That it be granted leave to appeal from that decision.

The orders from which leave to appeal is sought were made on the plaintiffs’ senior counsel’s oral application for delivery up of copies of Exhibit LJH10 to the affidavit of Lindon John Huxtable sworn on 16 July 1998 in the possession of the defendant or the defendant’s legal advisers.
That oral application followed an earlier application made by the plaintiffs’ senior counsel to the Chief Justice on 20 and 23 July 1998.
On the later date the Chief Justice ordered by consent:
“1..... That the defendant by close of business on Wednesday 29 July 1998 delivered to my associate/chambers all copies of the document LJH10 to the affidavit of Mr Huxtable sworn on 16 July 1998.
2.That the defendant’s solicitors, Johnson Winter & Slattery be permitted to retain one copy of that document and counsel, Mr Abbott QC, be permitted to retain a further copy of the document but that the content of the document is not to be communicated by the solicitors or by counsel to any other person except to the extent that it is necessary to do for the purpose of obtaining instructions from their client in connection with the application for the return of the remaining documents.”
It can be seen therefore that at the time that senior counsel for the plaintiffs made the oral application to which I have referred all of the copies of Exhibit LJH10 should have been delivered to the Chief Justice’s associate, except for the two copies referred to in paragraph 2 of the Chief Justice’s order.
The documents which were contained in Exhibit LJH10 were copies of the plaintiffs’ documents which had been inadvertently left by the plaintiffs’ legal advisers in the premises of the defendant when the plaintiffs’ legal advisers were taking inspection of the defendant’s documents.
Most, although not all of the documents were documents to which legal professional privilege would ordinarily attach, being communications between the plaintiffs and the plaintiffs’ legal advisers.
When the documents came to the attention of the defendant, the defendant gave them to its solicitors who retained those documents in their possession. Subsequently they copied those documents to other solicitors and counsel acting for the defendant in another action and to counsel in these proceedings and to various other parties.
The defendant retained the originals of these documents and later the copies because it wished to use the documents for the purpose of supporting an application for a stay of the plaintiff proceedings upon the ground that the proceedings amounted to an abuse of process. It was said that these documents were evidence of the collateral purpose for which these proceedings had been brought and in those circumstances legal professional privilege did not attach to the documents. It was said, in those circumstances, that the defendant was perfectly at liberty to use copies of the plaintiffs’ documents for the purpose of supporting the application for a stay of these proceedings.
The application for the stay came before the Chief Justice at or about the same time as he made the orders referred to above.
On 21 September 1998 the Chief Justice made a further order in the following terms:
“1..... That the defendant, by the close of business on Wednesday 30 September 1998, provide full particulars in writing of the matters relied upon by it in support of its application for a stay of these proceedings.
2.That the defendant, by close of business on 30 September 1998, provide particulars of any evidence to be adduced by it in support of its application for a stay of these proceedings.”

The defendant gave particulars in accordance with paragraph 1 of the Chief Justice’s orders;

“PARTICULARS OF ABUSE
In these particulars, the 13th, 14th and 15th defendants are referred to as ‘Auspine’.
1...... Auspine are defendants in proceedings in the Supreme Court of South Australia numbered 480/93 and 1299/96 (collectively referred to as ‘the management dispute’) in which the defendant herein (‘IOOF’) is the plaintiff.
2Auspine has instituted these proceedings for the purposes of:
2.1deflecting IOOF from devoting an appropriate level of effort and resources to the management dispute;
2.2obtaining information to be used in the management dispute which information would not otherwise be available to them by procedures which can be invoked in the management dispute.”

Whilst the original application sought a stay of all of the plaintiffs’ proceedings the particulars only claim that the 13th, 14th and 15th plaintiffs were guilty of an abuse of process by instituting the proceedings for the purposes referred to in paragraph 2 of the particulars.
It can be seen therefore that the plaintiffs’ documents contained in Exhibit LJH10 could only be used, in accordance with the particulars given, for the purpose of supporting an application to stay the proceedings brought by the 13th, 14th and 15th plaintiffs.
The documents would not be evidence supporting an application to stay the proceedings brought by the other plaintiffs. Indeed, on the particulars it could not be said, in my opinion, that the defendant was entitled to any stay of proceedings against the plaintiffs, except for the 13th, 14th and 15th plaintiffs.
In those circumstances the application for a stay could only lead to a stay of the proceedings brought by the 13th, 14th and 15th plaintiffs. In those circumstances these documents had only a limited use in that interlocutory application and in these proceedings generally.
I published my reasons on 30 March 1999 and made orders based upon these reasons on 31 March 1999 and 1 April 1999.
The defendant did not seek leave to appeal from my decision but on 13 April 1999 filed and served a notice of appeal against my decision. The grounds of appeal in that notice were:
“1..... That the learned trial judge (sic) erred in holding that the documents did not constitute evidence which could support an argument that the proceedings are an abuse of process.
2.That the learned trial judge (sic) erred in ordering that the defendant pay the plaintiffs’ costs on an indemnity basis.”
On 29 April 1999 the plaintiffs applied for an order dismissing the notice of appeal as incompetent.
That matter came before me on 6 May 1999 and during argument I asked the defendants, through its counsel, more than once whether it wished to seek leave to appeal from my decision. I was advised that it did not.
On 20 May 1999 I published reasons for deciding that the appeal was incompetent.
On the same day at the request of the defendant I heard the defendants’ application for a stay of the plaintiffs’ proceedings. I said in my reasons published on 27 May 1999:
“The application is to stay these proceedings only in respect of the three Auspine plaintiffs. Even if the defendants application was successful the remaining plaintiffs’ application would go forward. Mr Whitington QC suggested that if I was disposed to stay the Auspine plaintiffs’ proceedings I might also stay the remaining plaintiffs’ action or impose terms upon the plaintiffs in the further proceedings.
In the absence of any claim that the remaining plaintiffs have brought their proceedings for an improper purpose no order could be made staying their proceedings. There would simply be no reason to stay their proceedings. Moreover, in the absence of any claim that the remaining plaintiffs might use any information obtained in these proceedings for an improper purpose, it would not be appropriate to impose any terms upon the remaining plaintiffs’ claim. Therefore even if the defendant succeeds on this application the defendant will still have to deal with the remaining plaintiffs’ applications.
Nevertheless because the defendant presses this application, before the matter proceeds any further, it is necessary to deal once and for all with the defendant’s application for a stay of the Auspine plaintiffs’ proceedings.”
The defendant proceeded without being able to rely upon the documents contained in Exhibit LJH10.
On 27 May 1999 I found that the defendant had not adduced any evidence to support either of the particulars of the improper purposes given on 10 September 1998. I therefore dismissed the application for a stay of the Auspine plaintiffs’ proceedings.
The defendant has not appealed from my decision or sought leave to appeal from that decision dismissing the defendants’ application for a stay of the 13th, 14th and 15th plaintiffs’ proceedings.
There is no other application for a stay by the defendant. The documents which comprised Exhibit LJH10 no longer have any relevance in the proceedings. The defendant has not claimed that they have any other relevance other than to support the stay application which has been dismissed. Indeed Mr Whitington QC, who appeared for the defendant, expressly said that it was not suggested that the documents had any use outside the stay application.
On 3 June 1999 the defendant made this application.
If my decision of 20 May 1999 is correct and the appeal is incompetent then the defendant needs leave to appeal from my decision given on 30 March 1999 and the orders made on 31 March 1999 and 1 April 1999.
Leave to appeal to the Full Court is governed by Rule 94.01 of the Supreme Court Rules which requires the applicant to seek leave at the time judgment is delivered or the order made or, if an application is not made at the time, by application either ex parte or upon notice to the judge appealed from or, to the Full Court, but in any event within fourteen days of the date of delivery of the judgment or the making of the order.
If I refuse the defendant leave to appeal the defendant may renew its application to the Full Court (Rule 94.02).
I heard this application inter partes because the defendant had served the plaintiffs with its application for leave to appeal and because the defendant required an extension of time within which to bring this application.
The procedure adopted by the defendant has meant that this application was made about six weeks out of time. The defendant could have, as an alternative to lodging a notice of appeal, sought leave to appeal within the fourteen days prescribed by Rule 94.01. The defendant could have made an application for leave to appeal during the hearing of the plaintiffs’ application to dismiss the appeal as incompetent. It did neither. It has therefore delayed this matter by that time.
The decision at which I arrived, or more particularly the orders sought to be appealed from are interlocutory orders: Rouse & Ors v IOOF Australia (No. 2), ((1999) SASC 205, 20 May 1999, Lander J).
An appeal is a creation of Statute: Victorian Stevedoring and General Contracting Pty Ltd v Dignan (1931) 46 CLR 73 per Dixon J at 108; South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 per Isaacs J at 553.
A right to appeal from judgment of a single judge of this Court is given by s50 of the Supreme Court Act. The general right given in s50(1) is subject to the limitations in the proviso to that section. In certain circumstances the section precludes any appeal: s50(1)(1) In other circumstances it allows an appeal only by leave of the judge who made the order (s50(1)(2)) and in other circumstances only by leave of the judge who made the order or the Full Court: s50(1)(3).
Clearly enough Parliament intends that it is in the public interest that some matters always be determined by a single judge and other matters usually be determined by a single judge.
Putting aside appeals under the Justices Act or the Summary Procedure Act as it is now called (s50(1)(3)), and judgments or orders which are by statute or agreement final, the proviso to s50 is mainly concerned with procedural matters or the procedural law and is not concerned with decisions which affect the substantive rights of the parties. That is clear, in my opinion, in the proviso itself but also in the exceptions to the proviso in s50(1)(3)(b). Those exceptions mean that parties have the statutory right to appeal given by s50(1) where substantive rights might be affected by procedural decisions.
However the intent of s50 is clear and that is to limit the circumstances where a party might appeal from a procedural judgment or order which does not affect any of the substantive rights mentioned in s50(1)(3)(b). In my opinion this reflects the legislative policy against appeals from interlocutory decisions.
The Act does not purport to lay down criteria which must be satisfied for the granting of leave under either s50(1)(2) or s50(1)(3) of the Supreme Court Act. That may be because the criteria for leave to appeal may be different in applications for leave to appeal from a decision of a judge upon an appeal from a court of summary jurisdiction from applications for leave to appeal from an interlocutory order or judgment.
The criteria might also be different if leave is sought from a decision of a judge who has determined an interlocutory application on an appeal from a judgment or order of a Master: s50(2).
The Rules of Court (r94.01) are also silent as to any criteria that must be satisfied before leave may be granted. That is because r94 deals with all applications under s50(3) which means it includes quite diverse applications including applications for leave to appeal from appeals from Magistrates Courts to simple interlocutory judgments or orders made by the judge himself or herself.
The criteria for leave need not necessarily be the same in respect of all matters under s50(1)(3). In respect of appeals from decisions of a single judge on appeal from the Magistrates Court a successful application for leave may require the applicant satisfying the Court that the matter is one which gives rise to a question of general principle or a matter of general importance to the parties: Howe v Dayman (1943) SASR 20 at 23; Campbell v O’Sullivan (1947) SASR 195 at 208.
In applications for leave to appeal from interlocutory decisions the criteria will be different. The court has a broad discretion to grant or withhold leave to appeal. In exercising the discretion the courts have formulated a number of guidelines. In an application for leave to appeal from an interlocutory order the applicant would have to show that the matter is one which is attended with sufficient doubt to warrant its being reconsidered on appeal and that the applicant will suffer substantial injustice if leave is not granted: BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 at 758. In so far as the matter involves the exercise of a discretion, the applicant would need to show that it was arguable that inappropriate regard had been had to some matters or there had been a failure to have regard to some matters to which regard should have been had or the decision involved an error in principle: House v The King (1936) 55 CLR 499 at 505; Consolidated Gold Mining Areas NL v Enterprise Gold Mines NL (1992) 57 SASR 584.
Usually a court will be less inclined to grant leave to appeal where the matter appealed from is a matter of pure practice and procedure: Contender 1 Ltd v Lep Interest Pty Ltd (1988) 82 ALR 394.
In all circumstances, whatever the subject matter of the application for leave to appeal, the applicant must show that a failure to grant leave could give rise to an injustice to the applicant.
It is as well to keep in mind that different criteria apply to different applications under s50(1)(3). Moreover different criteria might apply where leave is required by statute: Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312.
The decision from which leave to appeal is sought involved simply a consideration of a few documents which would ordinarily attract legal professional privilege. I had to consider whether the documents in their terms were such as to give some colour to a claim of an abuse of process.
I decided that on a reading of the documents they did not give that colour and therefore the defendant could not say that the documents had lost the protection of legal professional privilege.
The question was simply one of an assessment of the terms of the documents to determine whether they supported or gave colour to a claim of abuse of process.
Whilst the matter was interesting and, the circumstances in which the documents were obtained were unusual and, the way in which the defendants used the documents was, on my finding, extraordinary, in the end result the decision was simply whether the documents had the evidential value that the defendant claimed.
No question of law of any importance was involved nor any matters of general importance.
More importantly the matter was not particularly significant within the framework of these proceedings. If I had decided otherwise the documents could have been used in support of the application for a stay of the 13th, 14th and 15th plaintiffs’ proceedings. I have found in another hearing that the application for a stay, absent these documents had to fail. Of course on my decision even if these documents had been used to support such an application the application for a stay would have also failed.
However, even if these documents did add some colour to a claim of an abuse of process there is certainly no reason to think that the application for the stay of the 13th, 14th and 15th plaintiffs’ proceedings would have necessarily been successful.
My decision therefore deprived the defendant of some chance of prosecuting with more vigour than it ultimately did the application for the stay against the 13th, 14th and 15th plaintiffs.
But in any event, even assuming that the defendant would have succeeded on its application for a stay that would have only stayed the proceedings of three of a number of plaintiffs. The remaining plaintiffs would still have been entitled to prosecute their claim absent the 13th, 14th and 15th plaintiffs.
Having regard to the relief that is sought in these proceedings the absence of those plaintiffs would be immaterial.
In my opinion therefore on any understanding of the criteria necessary to establish a grant of leave to appeal the defendant must fail. It cannot claim that the decision appealed from raised any matter of any general importance or any particular importance of law. It cannot claim that the decision is likely to lead to any injustice to the defendant.
In my opinion the defendants simply could not argue that there is any potential for injustice because it cannot say, even if the decision was reversed, that that would necessarily have led to a different conclusion in relation to an application for a stay directed to the 13th, 14th and 15th plaintiffs. Even if it did that that would give rise to an injustice because it would still face the claim brought by the remaining plaintiffs.
Mr Whitington agreed that these documents have no relevance outside the stay application. They will not be relevant on the substantive issues.
As the stay application directed to the 13th, 14th and 15th plaintiffs has been decided adversely to the defendant, the documents now have no relevance at all.
I raised with Mr Whitington another matter. As I have said the applicant filed a notice of appeal from my decision. I was asked to exercise jurisdiction under Rule 95.08 and dismiss the appeal as incompetent. I did that. In those circumstances, even though the appeal was not dismissed on its merits, it might be said that the applicant has exhausted all of its appeal rights. Its appeal, which was incompetent, has been dismissed. It cannot, therefore, it might be said, seek leave to appeal. However, because I do not think leave should be granted in any event, I do not need to decide that matter.

In my opinion the application for leave to appeal should be dismissed.
It follows that this would not be an appropriate matter to extend the time for the brining of the application.
I therefore order:
1Application for an extension of time within which to bring this application refused.

2Application for leave to appeal from my decision of 30 March 1999 and orders made on 31 March 1999 and 1 April 1999 dismissed.

[1999] SASC 294

22 July 1999