Sent, E.C. v Jet Corporation of Australia Pty Ltd

[1986] FCA 110

CATCHWORDS

Practlce and procedure - applicatlon for appeal from

interlocutory order . - application brought as separate

proceeding - whether appllcation can be subsumed into

original proceeding as a notice of motion.

Federal Court of Australia Act 1976 5.4

Federal Court of Australla Rules 0.13, 0 . 5 2

D W m D CHRISTIAAN SENT and BRIAN FORSHAW

and

JET CORPORATION OF AUSTRALIA PTY. LIMITED

(in its capacity as Trustee of the

JET CORPORATION AUSTRALIA TRUST)

V. No. G 292 of 1985

Northrop J.

17 February 1986

Melbourne

(Not considered appropriate for general

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IN THE FEDERAL COURT OF AUSTRALIA

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VICTORIA	DISTRICT	REGISTRY	)	V. No.'G 282 of 1985
)

I	DIVISION	GENERAL	)
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I	BETWEEN:

D W A R D CHRISTIAAN SENT

and BRIAN FORSHAW Applicants

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and !.

JET CORPORATION OF AUSTRALIA PTY. LIMITED

(in its capacity as Trustee of the

JET CORPORATION	AUSTRALIA	TRUST)	Respondent	t
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COURT: NORTHROP S.

U: 17 FEBRUARY 1986

PLACE : MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT:-

1. The application be dismissed.

2 . The applicants pay the respondent's costs of the

application.

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(Settlement and entry	of Orders is dealt	with in 0.36 of the
Rules of Court.)

IN THE FDERAL COURT OF AUSTRALIA ) )

VICTORIA	D STRICT	REGISTRY	1	V. No. G 282 of 1985
)

DIVISION GENERAL )

EDWARD CHRISTIAAN SENT

and BRIAN FORSHAW Applicants

and

JET CORPORATION OF AUSTRALIA PTY. LIMITED

(in its capacity as Trustee of the

JET CORPORATION AUSTRALIA TRUST) Respondent

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COURT: NORTHROP J . :. .

U: 17 FEBRUARY 1986

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PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

There is before the Court an application identified

as V. No. G 282 of 1985 in which Edward Christiaan Sent and

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Brian Forshaw are named as applicants and Jet Corporation of I .

Australia Pty. Limited (in its capacity as Trustee of the Jet

Corporation Australia Trust) is named as respondent. The

application is headed "APPLICATION FOR LEAVE TO APPEAL".	It
is addressed to the respondent care of its solicitors.	It

contains a notification that before taking any step in the

proceeding the respondent must enter an appearance in the

Registry and the applicants' address for service is set out.

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It is signed by the solicitors for the applicants and it has

the stamp on it of the Federal Court of Australia, Victoria

District Registry and is dated 16 December 1985.

The application itself seeks leave to appeal from the judgment of the Court given on 25 November 1985 in

proceedings V. No. G 109 of 1383 by which the respondent was

given leave to amend its Statement of Claim and application

in that proceeding.

By way of background, it is sufficient to say that

on 25 November 1985 in matter V. No. G 109 of 1983, Jet Corporation of Australia Pty. Limited was granted leave to

amend its Statement of Clalm in the form set out in exhibits

to affidavits filed in that matter. In particular, the

orders made affected the applicants in the present matter,	:
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Edward Christiaan Sent and Brian Forshaw. Order	3 of	that
order was very specific, namely:-

"That it is a condition of the allowance of the

amendment of the Statement of Claim that so much

of the action as is concerned with the cause of

action introduced by these amendments shall be

deemed to have begun for the purposes of the Trade

Practices Act 1974 on the date on which this order

is made. I'

When judgment was given on that motion by Jet

Corporation of Australia Pty. Limited for leave to amend the

Statement of Claim, counsel for Messrs. Sent and Forshaw

raised the problem that the amendments raised a matter which

was binding upon the Federal Court constituted by a slngle

Judge and in all probability upon a Full Court of the Federal

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Court, but was a matter which was then subject to special

leave of the High Court. To some extent, order 3 , which has

been set out above, protects the rights of Messrs. Sent and

Forshaw in that regard- but after judgment had been given,

counsel raised this matter as well by asking whether the

order granting leave to amend could be made conditional upon

there being liberty given to the eighth and ninth respondents

to apply to strike out the amendments in the event of the

! High Court appeal being successful.

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The Court as then constituted said that if the High

Court appeal was successful, there should be no doubt that in

some way the order could be set aside. This is based	on the	.'
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fact that this was an interlocutory order, there was no final

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order and if, before the action came on for trial, the High

Court declared what the law was and if that declaration	was	I-
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contrary to the law as declared by the Full Court, the

Federal Court would be bound to follow the High Court ruling

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and in those circumstances all necessary amendments to the

Statement of Claim could be made to give effect to that.

Notwithstanding that, Messrs. Sent and Forshaw then

purported to make application for leave to appeal and in

doing so, failed to comply with the requirements o f 0.52 r.10

of the Federal Court Rules which provide for cases where

leave to appeal from interlocutory judgments of the Federal

Court is sought. Rule 10 is as follows:-

"10. (1) An application for leave to appeal ' ,

from an interlocutory ludgment of the Court may be

made orally to the Judge who has pronounced the

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judgment at the time of its pronouncement or within !.

such further time as that Judge may fix.

( 2 ) Where an application has not been made in

accordance with sub-rule (11, any application shall

be made by motion on notice in the proceeding, and

the provisions.of Order 19 shall apply.

( 3 ) An applicant under sub-rule (1) or ( 2 )

may present his case and his argument to the Court

in writing pursuant to rule 15A."

That rule is clear. It refers to any application

for leave to appeal being made either orally to the Judge who

gives judgment at the time ludgment is pronounced or within

such further time as that Judge may fix, or by motion on

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notice in the proceedings. It does not allow for a separate

proceeding to be commenced seeking leave to appeal.	!.
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In this case Messrs. Sent and Forshaw did not

comply with the requirements of 0.52 r.10 but made a separate

application for leave to appeal. That separate application

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was treated as a separate proceeding, given a different

number for administrative purposes and did not comply with the requirements of the forms set out in the Federal Court	1	.
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Rules as to new applications. To this extent, the Registry ! ,

was at fault in accepting that document.

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At the same time, the solicitors for Messrs. Sent

and Forshaw were at fault in not complying with the

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requirements of the Rules. In any event, any appeal does not

operate as a stay of proceedings and the mere giving of a

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notice of motion for leave to appeal does not operate as a	I .
stay. In reality, what Messrs. Sent and Forshaw were seeking

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was a stay of the operation of the order giving leave to

amend the statement of claim pending the hearing and

determination by the High Court of the matter currently

before the High Court.. As far as I know, that motion for a

stay has not yet been made, except to the extent that today

counsel for Messrs. Sent and Forshaw has submitted that under

0.13, the Court should give leave to amend the application in

matter V. No. G 282 of 1985 and to treat that as a notice of

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motion in proceeding V. No. G 109 of 1983. In my opinion,

that is not permissible. They are separate proceedings and

that separateness 1s not overcome by the definition of

"proceeding" appearing in s.4 of the Federal Court of

Australia Act 1976. They are separate proceedings and should

not be treated as if they were in the one proceeding. In any

event, the proceeding V. No. G 109 of 1983 is complicated

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enough and is not to be further complicated by the . ^ .

introduction of a separate file.

In all the circumstances, the Court must dismiss

the application which was issued on behalf of Messrs. Sent

and Forshaw and being the matter before the Court today, V.

No. G 282 of 1985, with costs. The matter was commenced by

those applicants without jurisdiction and the Court in those

circumstances must dismiss that application. In any event,

as a matter of discretion, even if the Court had power,	I
would refuse leave to amend the matter by treating it as	a
motion.

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This does not mean that Messrs. Sent and Forshaw,

if they are so advised, are prevented from taklng out a

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motinn seeklng a stay of the order for leave to amend the

Statement of Claim. That is a matter that they must

determlne for themselves. Seeing there is no basis for the

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application, it must be dismissed with costs.

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Accordingly, the following orders are made:-

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1. The application be dismissed.

2. The applicants pay the respondent's costs of

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the application.

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