FEDERAL COURT OF AUSTRALIA
Shaw v MAB Corporation Pty Ltd [2014] FCA 62
Keep reading for free
Create a free CaseChat account to read Shaw v MAB Corporation Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2014] FCA 62
- Decision Date
CaseChat Overview and Summary
The case of Shaw v MAB Corporation Pty Ltd involves a long-standing dispute between the applicant, Mr Shaw, and multiple respondents. The dispute originated from the purchase of land in Docklands by Mr Shaw from Yarranova Pty Ltd in 2000, leading to a series of legal proceedings in various courts. The matter before the court concerns an application for an extension of time and leave to appeal the summary judgment granted to the respondents under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). The court was required to determine whether the primary judge’s order was interlocutory in nature, which would necessitate leave to appeal, and whether the applicant had real prospects of success on appeal.
The court found that the primary judge’s order was indeed interlocutory in nature, meaning leave to appeal was required. Despite the applicant's argument that the primary judge's reliance on oppression was inappropriate, the court concluded that the order was interlocutory and thus leave to appeal was necessary. The applicant's application for leave to appeal was dismissed on the basis that there were no real prospects of success and the proceedings were bringing the administration of justice into disrepute.
In its decision, the court granted the applicant an extension of time to seek leave to appeal but dismissed the application for leave to appeal itself. The court emphasized the importance of the discretion given to courts in extending time to seek leave to appeal, which is intended to enable the court to do justice between the parties. The court also highlighted that the decision to grant leave to appeal from an interlocutory judgment must consider the prospects of success of the application for leave to appeal.
The final orders of the court were as follows: the time in which the applicant has leave to file and serve an Application for Leave to Appeal from the orders of the Court dated 22 November 2013 was extended to 15 January 2014; the application for leave to appeal from the orders of the Court dated 22 November 2013 was dismissed; and the parties were required to file and serve any written submissions they wished to make as to the costs of this application on or before 4.00pm on Monday 24 February 2014, limited to no more than three pages.
The court found that the primary judge’s order was indeed interlocutory in nature, meaning leave to appeal was required. Despite the applicant's argument that the primary judge's reliance on oppression was inappropriate, the court concluded that the order was interlocutory and thus leave to appeal was necessary. The applicant's application for leave to appeal was dismissed on the basis that there were no real prospects of success and the proceedings were bringing the administration of justice into disrepute.
In its decision, the court granted the applicant an extension of time to seek leave to appeal but dismissed the application for leave to appeal itself. The court emphasized the importance of the discretion given to courts in extending time to seek leave to appeal, which is intended to enable the court to do justice between the parties. The court also highlighted that the decision to grant leave to appeal from an interlocutory judgment must consider the prospects of success of the application for leave to appeal.
The final orders of the court were as follows: the time in which the applicant has leave to file and serve an Application for Leave to Appeal from the orders of the Court dated 22 November 2013 was extended to 15 January 2014; the application for leave to appeal from the orders of the Court dated 22 November 2013 was dismissed; and the parties were required to file and serve any written submissions they wished to make as to the costs of this application on or before 4.00pm on Monday 24 February 2014, limited to no more than three pages.
Orders
Orders of the court
1. The time in which the applicant has leave to file and serve an Application for Leave to Appeal from the orders of the Court dated 22 November 2013 is extended to 15 January 2014.
2. The application for leave to appeal from the orders of the Court dated 22 November 2013 is dismissed.
3. The parties file and serve any written submissions they wish to make as to the costs of this application on or before 4.00pm on Monday 24 February 2014. Any submissions are to be limited to no more than three pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, I have concluded that the primary judge’s order was interlocutory in nature and accordingly leave to appeal is required. The applicant will be granted an extension of time in which to seek leave to appeal, but his application for leave will be dismissed.BACKGROUND This proceeding emerges from a long history in other courts, which is set out in detail in the reasons of the primary judge: see Shaw v MAB Corporation Pty Ltd [2013] FCA 1231 at [3]-[22]. In summary, the dispute between the applicant and two of the current respondents originally related to the purchase on 12 April 2000 by the applicant, Mr Shaw, of land subject of a development at Docklands from Yarranova Pty Ltd (Yarranova), the third respondent. On 1 December 2003, the applicant commenced proceedings in the Supreme Court of Victoria against the third respondent and Newquay Stage 2 Pty Ltd (Newquay), the fourth respondent, to which Yarranova had assigned its rights and obligations under the contract of sale with the applicant. In that Supreme Court proceeding, the applicant sought specific performance of the contract, relief against forfeiture, a declaration that a caveat he had lodged in relation to the land was valid, and damages. In its counterclaim, Newquay sought removal of the caveat. Bell J found in favour of the respondents on the claim and Newquay succeeded on its counterclaim: see Shaw v Yarranova Pty Ltd [2006] VSC 45. So began a sequence of appeals, applications and other proceedings in the Supreme Court, and the Victorian Court of Appeal, stemming in one way or another from that initial determination by Bell J. On any view, there have been a large number of applications and decisions in the Supreme Court in respect of the applicant, Yarranova and Newquay. The applicant submitted that he has “initiated” only two of them: namely, the first proceeding before Bell J, and an application for a stay of Bell J’s judgment pending the hearing and determination of the applicant’s appeal. Aside from the original proceeding and the appeal against Bell J’s orders, all of the other proceedings have, he submitted, either been applications brought by or on behalf of the respondents or appeals by the applicant from those applications, when decided unfavourably to him. The respondents’ applications include injunctions restraining the applicant from dealing with assets, assessments of damages following an undertaking given by the applicant, costs orders and freezing orders. The applicant makes a point of this fact in his submissions about why the primary judge was wrong to rely on concepts of oppression to give judgment in favour of the respondents. I will return to this contention later in these reasons. At the time of this judgment, proceedings by Mr Shaw remain on foot in the Court of Appeal: namely an appeal from the orders of Dixon J of 11 April 2013. Dixon J had dismissed the applicant’s summons of 4 September 2012, which sought to set aside the orders of Daly AsJ of 7 March 2008. The orders of Daly AsJ had awarded damages in favour of Yarrranova and Newquay. The presence of continuing proceedings in the Court of Appeal only serves to highlight the abuse of process found to exist by the learned primary judge.PROCEEDINGS AND JUDGMENT IN THIS COURT
Evidence
Evidence Before The Court
Although they fairly recognised that the applicant has provided an explanation for the delay in filing his application for leave to appeal, the respondents oppose the application for leave to appeal and the extension of time sought by the applicant, on the basis that the orders of the primary judge are not attended with sufficient doubt to warrant the grant of leave.EVIDENCE ON THE LEAVE APPLICATION The applicant read an affidavit affirmed by him on 8 January 2014, and filed with the Court on 15 January 2014. The respondents made no objections to that affidavit. The affidavit dealt in substance with the applicant’s attempts to file an appeal from the primary judge’s orders, which I have outlined at [17]-[18] above.CRITERIA GOVERNING THE GRANT OF LEAVE TO APPEAL Section 24(1A) of the Federal Court Act confers on the Court an “unfettered discretion” to grant leave to appeal, in “unqualified terms”: Décor Corporation 33 FCR 397 at 399. Principal (but not sole) considerations in the exercise of discretion are whether the Court’s decision is attended by sufficient doubt to warrant the grant of leave, and whether substantial prejudice or injustice would result if leave were refused: see Décor Corporation 33 FCR 397 at 399. More recently, a Full Court of this Court has expressed those considerations in the following terms:Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.(Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 at [20].) It must be borne in mind the discretion is a broad one, which must be capable of adapting to the variety of circumstances which may be presented to the Court, depending on the nature and subject matter of the proceeding in question. A distinction is often drawn between interlocutory decisions on points of practice and procedure and those which determine substantive rights, the latter attribute in some circumstances inclining in favour of the exercise of discretion: see Décor Corporation 33 FCR 397 at 400; Cement Australia 187 FCR 261; [2010] FCAFC 101 at [22], referring to Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292 at [23]; Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [19]-[20]. The applicant will, of course, also need to demonstrate that the learned trial judge made an error of the kind identified in House v The King (1936) 55 CLR 499 at 505: see Samsung [2013] FCAFC 138 at [17]; Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 33 at [24] per Yates J.CRITERIA GOVERNING AN EXTENSION OF TIME TO SEEK LEAVE TO APPEAL So far as the extension of time application is concerned, the discretion given to courts to extend time is given for the purpose of enabling the court to “do justice between the parties”: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. When exercising the discretion in relation to leave to appeal from an interlocutory judgment, the Court must consider the prospects of success of the application for leave to appeal: Deighton v Telstra Corporation Ltd (Unreported, Federal Court of Australia, Lee, Heerey and RD Nicholson JJ, 17 October 1997). As set out at [28] above, leave will only be granted where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: Décor Corporation 33 FCR 397 at 399. In Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802, Lindgren J observed (at [20]) that “[i]n practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself”.
Decision
Reasons for decision
At the time of this judgment, proceedings by Mr Shaw remain on foot in the Court of Appeal: namely an appeal from the orders of Dixon J of 11 April 2013. Dixon J had dismissed the applicant’s summons of 4 September 2012, which sought to set aside the orders of Daly AsJ of 7 March 2008. The orders of Daly AsJ had awarded damages in favour of Yarrranova and Newquay. The presence of continuing proceedings in the Court of Appeal only serves to highlight the abuse of process found to exist by the learned primary judge.PROCEEDINGS AND JUDGMENT IN THIS COURT The applicant commenced proceedings in this Court against 10 respondents by way of originating application and statement of claim on 3 August 2013. In that application, the applicant made a variety of allegations against the respondents, which are summarised by the primary judge in his reasons at [31]-[38]. They included allegations of conspiracy to tender false evidence, conspiracy to suborn witnesses, the giving of false evidence, seeking to obtain unjust enrichment, fraud, fraudulent concealment, and intimidation. He also alleged that Yarranova and Newquay, along with MAB Corporation Pty Ltd (MAB), the first respondent, engaged in conduct that was both misleading and deceptive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA), involved false and misleading representations contrary to s 53A(2), and constituted “unconscionable conduct” in accordance with ss 51AA-51AC of the TPA. The applicant claimed by way of relief damages under the TPA, exemplary damages in the amount of $500,000, costs, and, by interlocutory application, a stay of the bankruptcy proceedings brought against him by Yarranova and Newquay in the Federal Circuit Court and an injunction restraining the respondent from recovering costs arising from the original proceeding in the Supreme Court of Victoria, until such time as the application in this Court was heard and determined. His application for a stay of the bankruptcy proceedings was dismissed by judgment dated 25 October 2013: Shaw v Yarranova Pty Ltd [2013] FCCA 1627. On 27 September 2013, the respondents filed an interlocutory application seeking· an order that there be summary judgment for the Respondents pursuant to s. 31A of the Federal Court of Australia Act 1976 (Cth), or alternatively, under r 26.01 of the Federal Court Rules 2011 (Cth).· Alternatively, an order that the proceeding be permanently stayed, pursuant to ss. 20 and 23 of the Federal Court of Australia Act 1976 (Cth) and the implied jurisdiction of the Federal Court of Australia. The application for summary judgment was heard by the primary judge on 31 October 2013, with judgment delivered on 22 November 2013. It is important to note the structure of his Honour’s reasons, both as an aid to understanding the various findings made, and in order to deal with the applicant’s submissions on this application about the errors said to inhere in the primary judge’s reasoning. The applicant’s statement of claim made a number of allegations against 10 respondents, all involving their conduct in previous proceedings in the Victorian Supreme Court, and in the Federal Circuit Court. To deal with the breadth and variety of the allegations, the primary judge sought (at [31]) to examine the relationship between the applicant’s allegations in the proceeding in this Court and the various applications and decisions in the Supreme Court of Victoria and the Federal Circuit Court. He did this by dividing the allegations into four groups and, within those groups, subdividing the allegations into parts if necessary. For example, through this method, the primary judge identified that the applicant’s allegations in his statement of claim about the conduct of Yarranova, Newquay and some of the individual respondents conspiring to provide false evidence to the Victorian Supreme Court, and giving false evidence to the Supreme Court, related to an application by Yarranova and Newquay for an injunction restraining the applicant from drawing down or otherwise dealing with a mortgage facility he had obtained from the National Australia Bank over properties which were subject to a warrant of seizure and sale in favour of Yarranova and Newquay, as a result of earlier judgments in their favour against the applicant. The applicant sought leave to appeal from those injunction orders, but was refused leave.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.