Smith v JZ Lee Interiors Pty Ltd - [2017] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0134

BRENDON SMITH and DONAMIS CONSULTANTS (VIC) PTY LTD (ACN 125 343 268)	Applicants
v
J Z LEE INTERIORS PTY LTD (ACN 075 815 093)	Respondent

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JUDGES:	TATE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2017
DATE OF JUDGMENT:	22 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 65
ORDER APPEALED FROM:	Smith v J Z Lee Interiors Pty Ltd (Unreported, Supreme Court of Victoria, Elliott J, 26 August 2016)

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PRACTICE AND PROCEDURE – Application for leave to appeal against the grant of leave to further amend a statement of claim – Proper role of Court of Appeal in matters of practice and procedure – Case management role of the trial judge – Whether error demonstrated in the exercise of the trial judge’s discretion – Whether substantial injustice – Whether proposed grounds of appeal have real prospect of success – Judgments of fact and degree – Leave to appeal refused – Swan Hill Chemicals Pty Ltd v M A & Tripodi Pty Ltd [2016] VSCA 264 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants:	Ms M Loughnan QC with Mr S Dyrenfurth	Altus Lawyers
For the Respondent:	Mr I W Upjohn QC with Mr J P Carney	Webb Korfiatis

TATE JA:

The Court has arrived at a determination of this matter and I invite Osborn JA to deliver the first judgment.

OSBORN JA:

On 26 August 2016, Elliott J sitting in the Commercial Court made orders that the plaintiff file and serve a second further amended statement of claim in accordance with rulings made by the Court on that date. He made further orders with respect to defences, any counterclaim, any reply and defence to counterclaim and fixed a date for further discovery. He also made a series of incidental and consequential orders, including orders that the respondent pay the costs relating to the amendment.

The applicants now seek leave to appeal these orders.

In so doing, they must confront the principles summarised by Santamaria JA and Riordan AJA in Swan Hill Chemicals Pty Ltd v M A & J Tripodi Pty Ltd:[1]
[1][2016] VSCA 264 [21]–[22] (citations in original).

On an application for leave to appeal, the Court is required to take into account the following considerations:
(a)The power to order an amendment to a pleading is discretionary and is therefore subject to the limitations identified in House v The King.[2]
[2](1936) 55 CLR 499, 504–5.
(b)The decision of the trial judge was interlocutory in character. In Livingspring Pty Ltd v Kliger Partners,[3] this Court recognised the legislative policy in respect of the hearing of appeals against interlocutory orders and endorsed the statement of the Full Court in Perry v Smith,[4] that ‘the object [of cutting down the number of interlocutory appeals] which Parliament had should be recognised by
[3](2008) 20 VR 377 (Maxwell P and Buchanan JA) (‘Livingspring’s case’).
[4](1901) 27 VLR 66,…

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: [2017] VSCA 65
Decision Date: 22 March 2017

CaseChat Overview and Summary

The case of Smith v JZ Lee Interiors Pty Ltd involved an application for leave to appeal against the grant of leave to further amend a statement of claim. The dispute arose between the plaintiff, Smith, and the defendant, JZ Lee Interiors Pty Ltd, concerning an alleged breach of contract and associated damages. The matter was heard in the Supreme Court of Victoria, Court of Appeal.

The central legal issues in this case were the proper role of the Court of Appeal in matters of practice and procedure, particularly regarding the case management role of the trial judge. The court had to determine whether an error had been demonstrated in the exercise of the trial judge's discretion to grant leave to further amend the statement of claim. Furthermore, the court needed to assess whether a substantial injustice had occurred and whether the proposed grounds of appeal had a real prospect of success. The court was also tasked with considering the principle that judgments of fact and degree are generally not amenable to appeal.

In its judgment, the court held that the trial judge's decision to grant leave to further amend the statement of claim was within the ambit of their case management discretion. The Court of Appeal emphasised its limited role in reviewing such decisions, particularly where they pertain to practice and procedure. The court applied the principles set out in Swan Hill Chemicals Pty Ltd v M A & Tripodi Pty Ltd, holding that the trial judge's exercise of discretion was not an error and that there was no substantial injustice. Consequently, the application for leave to appeal was refused. The court underscored that such decisions are typically reserved for the trial judge, given their unique position to manage the proceedings effectively.

The court's final orders were that the application for leave to appeal was dismissed, and no further appeal could be taken regarding the grant of leave to further amend the statement of claim.

Orders