Sandhurst Trustees Limited v Clarke - [2014] FCA 841

FEDERAL COURT OF AUSTRALIA
Sandhurst Trustees Limited v Clarke [2014] FCA 841

Citation: Sandhurst Trustees Limited v Clarke [2014] FCA 841

Appeal from: Application for leave to appeal: Clarke v Sandhurst Trustees Limited [2014] FCA 580

Parties: SANDHURST TRUSTEES LIMITED ABN 16 004 030 737 v GRAEME CLARKE and MARION CLARKE

File numbers: QUD 294 of 2014

Judge: RANGIAH J

Date of judgment: 24 July 2014

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal decision of Federal Court granting discovery to prospective applicant pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) – whether orders granting preliminary discovery are final in substance – whether question of leave to appeal ought to be heard and determined by a Full Court

Legislation: Federal Court of Australia Act 1976 (Cth) ss 25(1A) and 25(2)(e)
Federal Court Rules 2011 (Cth) r 7.23

Cases cited: Adam P Brown Male FashionsPty Ltd v Philip Morris Inc (1981) 148 CLR 170 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 cited
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 cited
Malouf v Malouf (1999) 86 FCR 134 cited
Minogue v Williams [2009] FCA 125 cited
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2007) 163 FCR 554 cited
Petroulias v Commissioner of Taxation [2011] FCA 795 cited
Wills v Australian Broadcasting Commission (2009) 173 FCR 284 cited
Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624 cited

Date of hearing: 24 July 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 10

Counsel for the Applicant: Mr M Hoffmann QC with Mr M Trim

Solicitor for the Applicant: Group Legal Bendigo and Adelaide Bank Limited

Counsel for the Respondents: Mr T Martin SC with Mr G Drew

Solicitor for the Respondents: Shine Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 294 of 2014

BETWEEN:
SANDHURST TRUSTEES LIMITED ABN 16 004 030 737
Applicant

AND:
GRAEME CLARKE
First Respondent

MARION CLARKE
Second Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

24 JULY 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Pursuant to s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth), the application for leave to appeal be heard and determined by a Full Court.
2.The application for leave to appeal be heard concurrently with or immediately before the hearing of the appeal if leave is granted.
3.The appeal be listed for hearing in Brisbane on a date to be fixed during the Full Court and appellate sitting period from 3 – 28 November 2014.
4.The hearing be listed for an estimate of one day.
5.The appellant within 28 days of today submit to the Registrar a draft of the index to Part A of the appeal book and Part B of the appeal book.
6.In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 841
Decision Date: 24 July 2014

CaseChat Overview and Summary

Sandhurst Trustees Limited sought leave to appeal a decision of the Federal Court granting discovery to the respondent, Clarke, under r 7.23 of the Federal Court Rules 2011 (Cth). The primary issue before the Full Court was whether the question of leave to appeal ought to be heard and determined by a Full Court, given the contention that the orders granting preliminary discovery were final in substance. The Full Court considered the nature of the orders and the potential impact on the case's progression, ultimately deciding that the matter required the consideration of a Full Court.

The Full Court addressed the arguments presented by both parties, focusing on the procedural aspects of the appeal and the implications of the orders in question. It noted that the orders for discovery were significant and that the appeal involved complex legal issues concerning the interpretation and application of the Federal Court Rules. The Full Court determined that, due to the importance of the issues and the potential for broad implications, the application for leave to appeal should indeed be heard and determined by a Full Court, as per s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth).

In its decision, the Full Court ordered that the application for leave to appeal be heard by a Full Court, to be scheduled for a one-day hearing in Brisbane during the specified period. The court also set out detailed procedural requirements for both parties, including the submission of outlines of submissions, lists of authorities and legislation, and the preparation and filing of the appeal book. The Full Court reserved the costs of the application to itself, indicating that a final determination on costs would be made following the hearing of the appeal.

The Full Court's orders ensured that the appeal process would be conducted efficiently and that all procedural requirements were met, thereby facilitating a fair and thorough examination of the legal issues involved in the case.

Orders

Orders of the court

1. Pursuant to s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth), the application for leave to appeal be heard and determined by a Full Court.

2. The application for leave to appeal be heard concurrently with or immediately before the hearing of the appeal if leave is granted.

3. The appeal be listed for hearing in Brisbane on a date to be fixed during the Full Court and appellate sitting period from 3 – 28 November 2014.

4. The hearing be listed for an estimate of one day.

5. The appellant within 28 days of today submit to the Registrar a draft of the index to Part A of the appeal book and Part B of the appeal book.

6. In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, the applicant must file and serve on the respondents its outline of submissions.

7. In accordance with Practice Note APP2, not later than 4.00 pm 15 business days before the hearing of the appeal, the respondents must file and serve on the applicant a copy of its outline of submissions together with a list of materials it requires to be included in Part C of the Appeal Book.

8. In accordance with Practice Note APP2, not later than 4.00 pm 10 business days before the hearing of the appeal, the applicant must file and serve on the respondents a copy of any submissions in reply.

9. In accordance with Practice Note APP2, not later than 4.00 pm 5 business days before the hearing of the appeal, the applicant must:

(a) file four copies; and

(b) serve on the respondents an appropriate number of copies

of Part C of the Appeal Book.

10. Outlines of submissions are not to exceed 15 pages in length, including any annexures, and must be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

11. Each party file and serve a list of authorities and legislation in accordance with Practice Note CM 2.

12. Costs be reserved to the Full Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Sandhurst Trustees Limited v Clarke [2014] FCA 841
Appeal from:	Application for leave to appeal: Clarke v Sandhurst Trustees Limited [2014] FCA 580
Parties:	SANDHURST TRUSTEES LIMITED ABN 16 004 030 737 v GRAEME CLARKE and MARION CLARKE
File numbers:	QUD 294 of 2014
Judge:	RANGIAH J
Date of judgment:	24 July 2014
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal decision of Federal Court granting discovery to prospective applicant pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) – whether orders granting preliminary discovery are final in substance – whether question of leave to appeal ought to be heard and determined by a Full Court
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 25(1A) and 25(2)(e) Federal Court Rules 2011 (Cth) r 7.23
Cases cited:	Adam P Brown Male FashionsPty Ltd v Philip Morris Inc (1981) 148 CLR 170 cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 cited Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 cited Malouf v Malouf (1999) 86 FCR 134 cited Minogue v Williams [2009] FCA 125 cited Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2007) 163 FCR 554 cited Petroulias v Commissioner of Taxation [2011] FCA 795 cited Wills v Australian Broadcasting Commission (2009) 173 FCR 284 cited Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624 cited
Date of hearing:	24 July 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	Mr M Hoffmann QC with Mr M Trim
Solicitor for the Applicant:	Group Legal Bendigo and Adelaide Bank Limited
Counsel for the Respondents:	Mr T Martin SC with Mr G Drew
Solicitor for the Respondents:	Shine Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 294 of 2014

JUDGE:	RANGIAH J
DATE OF ORDER:	24 JULY 2014
WHERE MADE:	BRISBANE