Seeley International Pty Ltd v Brivis Australia Pty Ltd
[2003] FCAFC 130
•22 MAY 2003
FEDERAL COURT OF AUSTRALIA
Seeley International Pty Ltd v Brivis Australia Pty Ltd [2003] FCAFC 130
SEELEY INTERNATIONAL PTY LTD v BRIVIS AUSTRALIA PTY LTD
S 246 of 2002
WILCOX, SACKVILLE and SELWAY JJ
22 MAY 2003
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 246 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SEELEY INTERNATIONAL PTY LTD
APPLICANTAND:
BRIVIS AUSTRALIA PTY LTD
RESPONDENTJUDGES:
WILCOX, SACKVILLE AND SELWAY JJ
DATE OF ORDER:
22 MAY 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application for leave be dismissed.
2. The applicant pay the costs of the respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 246 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SEELEY INTERNATIONAL PTY LTD
APPLICANTAND:
BRIVIS AUSTRALIA PTY LTD
RESPONDENT
JUDGES:
WILCOX, SACKVILLE AND SELWAY JJ
DATE:
22 MAY 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
THE COURT:
The matter before the Court is an application for leave to appeal against a decision of O’Loughlin J in relation to an order his Honour made as to the cost consequences if the respondent to the present application, the applicant in the principal proceeding, decided to discontinue the action. There has been debate as to whether or not leave is required. Our view is that the order made by O'Loughlin J is an interlocutory order, thus requiring leave.
We have reached the view that the application does not warrant the grant of leave. In doing that we have taken into account the criteria to be considered, in such an application, that were stated by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. Those principles have long been regarded as authoritative, within the Court. We do not think it is necessary to go into the reasons for our view; they have been amply stated in the discussion that has occurred with counsel.
If we are wrong in thinking that leave is necessary, so that the applicant is entitled to appeal as of right, we would dismiss the appeal. In saying that, we bear in mind a number of matters. The first is that the order made by his Honour did not require the present applicant to pay any of the costs incurred by its opponent. The order merely deprived the present applicant of certain costs that it had incurred; namely, the costs incurred in connection with the principal proceeding after the end of the year 2000. His Honour had the benefit of a detailed consideration of the history of the matter, the substance of which he has reproduced in his reasons for decision. He had the benefit of lengthy submissions by counsel as to the proper course to be taken in relation to costs. He exercised his discretion, having regard to his view that both parties were at fault in the way they had handled the litigation.
His Honour had to make a judgment about the proper exercise of his discretion. It is not to the point that other judges may have come to a different view, and made an order that was more advantageous to the present applicant; or perhaps made an order that was less advantageous. There is clear authority for the proposition that the Court should be slow to uphold an appeal on a matter of practice and procedure: see Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211. A matter of practice and procedure includes an order for costs; see Queensland Wire at 222.
The principles relating to appeals on matters of practice and procedure were authoritatively laid down by the High Court of Australia in Adam P. Brown Male Fashions Pty Ltd v Philip Morris (1981) 148 CLR 170 at 177. Their Honours there quoted with approval the classic statement by Sir Frederick Jordan in Re Will of F.B. Gilbert (1946) 46 SR(NSW) 318 at 323. It seems to us that this statement is in point in the present case.
It is true, as Mr Whitington pointed out, that interlocutory orders can vary considerably. Some are of a relatively minor nature and have little substantive effect. Others are of a more serious nature and can be destructive of a party's ability to continue with a case. That is a reason why courts have to consider the nature of a case in deciding what is the appropriate order. We do not think the circumstance requires departure from the general principle that was laid down by Sir Frederick Jordan and endorsed by the High Court.
In our view, the decision taken by his Honour is free of any error of principle or misunderstanding of the law or the facts. If one applies the approach taken in House v King (1936) 55 CLR 499 at 504 to this case, it seems apparent it would not be correct for an appellate court to interfere with his Honour's decision. Accordingly, if the correct position is that the applicant has an appeal as of right, nonetheless the appeal ought to be dismissed.
As we take the view that the applicant does need leave, the appropriate order for the Court to make is that the application for leave be dismissed, with costs. We so order.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 13 June 2003
Counsel for the Applicant: R J Whitington QC, G S Clarke Solicitor for the Applicant: Piper Alderman Counsel for the Respondent: B N Caine SC, G R Tye Solicitor for the Respondent: Norman Waterhouse Date of Hearing: 22 May 2003
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