Scarel Pty Ltd v City Loan and Credit Corporation Pty Ltd

[1988] FCA 846

LIMITED CIRCULATION

PRACTICE AND PROCEDURE - Motion for e x t e n s i o n of s tay of

proceedings and for leave t o appeal - w h e t h e r orders subject

of application for leave t o appeal were f i n a l orders.

Federal C o u r t of A u s t r a l i a A c t 1976: S. 2 4 ( 1 A )

SCAREL PTY. LIMITED v. C I T Y LOAN & CREDIT CORPORATION PTY. L I M I T E D

G 5 1 3 of 1986

IAN FRANCIS YATES v. C I T Y LOAN C CREDIT CORPORATION PTY. LIMITED

1 7 FEBRUARY 1988

G277 of 1987

IAN FRANCIS YATES v. C I T Y LOAN & CREDIT CORPORATION PTY. LIMITED

B371 of 1987

LOCKHART,	SHEPPARD	a n d MORLING	JJ.
SYDNEY

LIMITED CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA 1

1

NEW SOUTH W S	DISTRICT	REGISTRY	1	No. G513 of 1986
GENERAL DIVISION

BFIWEEN:  SCAREL PTY. LIMITED

Applicant

m:	CITY LOAN & CREDIT CORPORATION PTY.
LIMITED

Respondent

No. G277 of 1987

IAN FRANCIS YATES

Applicant

CITY LOAN & CREDIT CORPORATION	Pm.
LIMITED

Respondent

No. B371 of 1987

RE : IAN F'RANCIS YATES

Debtor

AND: CITY LOAN & CREDIT CORPORATION PTY.
LIMITED

Creditor

COURT :	Lockhart, Sheppard and Morling JJ.
DATE :	17 February 1988
PLACE :	Sydney

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The order made by this Court on 11 December 1987 dismissing

proceeding G513 of 1986 and the order as to costs made on

that date be stayed until the determination of the appeal

from the judgment of Gummow J. of 10 February 1988 in proceedings G513 of 1986, G277 of 1987 and B371 of 1987 or until further order of the Court;

2.	The hearing of the appeal from the judgment of Gummow J.	of
10 February 1988 be expedited; and
3 .	Costs of the motion shall	be costs in the appeal.

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

IN THJ2 FEDERAL COURT OF AUSTRALIA 1

1

NEH SOUTH WALES DISTRICT REGISTRY 1	No. G513 of 1986
GENERAL DIVISION

BETWEEN:  SCAREX Pm. LIMITED

Applicant

N D A : CITY LOAN & CREDIT CORPORATION PTY.
LIMITED

Respondent

No. G277 of 1987

BETWEEN:  IAN F'RANCIS YATES

Applicant

AND : CITY LOAN & CREDIT CORPORATION PTY.
LIMITED

Respondent

No. B371 of 1987

RE : IAN FRANCIS YATES

Debtor

AND :	CITY LOAN & CREDIT CORPORATION	P T Y .
LIMITED

Creditor

COURT :	Lockhart, Sheppard and Morling JJ.
DATE :	17 February 1988

PLACE : Sydney

REASONS FOR JUDGMENT

THE COURT

The Court has before it $ motion by Ian Francis Yates in

proceeding G513 of 1986 to which the parties are Scarel Pty. Limited

("Scarel") as applicant and City Loan & Credit Corporation P t y . Limited ("City Loan") as respondent. Mr. Yates is not a party to that proceeding. Mr. Yates seeks two orders in his motion: first, that a

stay of proceedings granted	by a single Judge	of this Court (Gummow
J.) on 11 December 1987 be extended until the determination	of	the

substantive motion for leave to appeal which is before us today. The
second order sought by Mr. Yates is an order that leave be granted to

appeal from the judgment of Gummow J. given on 10 February 1988 in

matters numbers G513 of 1986, G277 of 1987 and B371 of 1987. In the

two last-mentioned matters the parties are Mr. Yates and City Loan.

Gummow J. had before him on 10 February 1988 motions seeking

an order that the orders	of the Court of 11 December 1987 be set aside
and that in lieu thereof there be substituted orders consolidating the

three proceedings to which reference hs been made; an order granting

leave to Mr. Yates to continue the consolidated proceedings in the

name of the company Scarel and an order granting him leave to be

substituted as applicant in proceeding G513 of 1986. Gummow J. 'S previous order of 11 December 1987 had been that proceeding G513 of 1986 be dismissed, the applicant Scarel to pay the costs of the

respondent City Loan in the proceedings a6 agreed or as taxed. That

order was made by consent.	Gummow J.	also ordered on that	occasion
that the order then made	not be entered before	4.00 p.m.	on 17

December 1987.	The motions which were before Gummow J. were filed
prior to the date on which the order for dismissal made on	11 December

could be entered and	no	steps have since been taken to enter that
order.

On 10 February Gummow J. considered the various motions

before him and ordered that the application by	Mr. Yates for leave tb
continue proceeding G513 of 1986 on behalf of and in the name	of
Scare1 be dismissed.	His Honour observed that it followed that the

balance of the applications also failed. In the result, his Honour

said that the previous order of the Court for dismissal of proceeding G513 of 1986 made on 11 December should proceed to entry. His Honour also made orders as to costs.

At the outset of the hearing of the motion before us for

leave to appeal and f o r a stay, counsel fur Mr. Yates, although seeking leave to appeal from Gummow J.'s judgment, submitted that there is no necessity for that leave to be granted because the orders

of Gummow J. are final orders. The solicitor appearing	for City Loan
submitted to the contrary.

With the consent of the parties, the Court first heard

argument as to whether or not the orders the subject of the

application for leave to appeal were final orders. Sub-section 24(1A1

of the Federal Court of Australia Act 1976 provides that an appeal

shall not be brought from a judgment that is an interlocutory judgment

unless the Court or a Judge gives leave to appeal. The question

whether a judgment	is final or interlocutory is one which	has been the
subject of considerable judicial comment and	has been productive	of
difficulty.

The test to be applied to determine whether a judgment is

final or	not is whether it finally determines the rights of the
parties.	That test requires the Court to have regard to the legal

rather than the practical effect of the judgment. This was the

essence of the decisions of the	High Court in Licul	v. Cornev (1976)
50 A.L.J.R.	439; Port of Melbourne Authority	v. Anshun Ptv. Limited

(1981) 147 C.L.R. 35 and Carr v. Finance Corporation of Australia

Limited CNo. 13 (1981 1 147 246. C.L.R.

Mr. Yates is not a party to proceeding G513 of 1986, but he

has sought an order of the Court that he be given leave to continue

that proceeding on behalf of Scarel. As Gummow J. pointed out in his

reasons for judgment of 10 February, the result of the refusal of

leave is that the order of 11 December 1987 dismissing proceeding G513

can proceed to entry. In the result, the legal effect	of the Court’s
order of 10 February is both to deny leave to Mr. Yates to	continue
proceeding G513 and to decline to set aside the consent judgment	of 11
December dismissing proceeding G513.	In those circumstances it is the

opinion of the Court that the judgment of Gummow J. finally determined

the rights of the parties, when the effect of the judgment is

characterised according to its legal rather than its practical effect.

It follows that the judgment of Gummow J. was final in nature. Leave

to appeal is therefore not necessary.

There remains the other portion of the motion before the

Court, namely, the motion	to stay the entry of the order made by
consent on 11 December 1987.	Mr. Yates seeks an order that the stay

operate until the determination of the appeal from Gummow J.’s

judgment of 10 February 1988. The Court is of the opinion that

sufficient has been said to show that there is an arguable case to be

raised in support of the appeal and accordingly thinks that the stay

should be granted. The Court expresses no views, of course, on the

ultimate success or otherwise, of the arguments which have been

foreshadowed before us as being the matters that will be raised	in the
appeal.

The order of the Court is that the order made by this Court

on 11 December 1987 dismissing proceeding G513 of 1986 and the

consequential order for costs be stayed until the determination of the appeal from the judgment of Gummow J. of 10 February 1988 or until further order of the Court. The costs of the motion today should be

costs in the appeal. The Court also orders that the hearing of the

appeal from the judgment of Gummow J. of 10 February 1988 be

expedited.

I certify that this and the preceding

four ( 4 ) pages are a true copy of the

reasons f o r judgment herein of the

Court.

Associate h T 6 k 9

Date: 17 February 1988

Counsel for the applicant: Mr. J . P . Hamilton with

Mr. R. K. Eassie

Solicitors for the applicant: Snelgrove, Mucsnik	& O’Brien
Solicitors for the respondent:	Mr. R. Anderson of Lane & Lane
Date of Hearing:	17 February  1988
Date of Judgment:	17 February 1988