Solomons Franchise Systems Pty Ltd v Taydex Pty Ltd

[1995] FCA 551

CATCHWORDS

PRACTICE & PROCEDURE - leave to appeal an interlocutory order

Solomons Franchise Systems Pty Ltd & Ors v Taydex Pty Ltd & Ors

No VG30 of 1994

Kiefel J  Brisbane  27 July 1995

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION   No. VG 30 of 1994

BETWEEN:

SOLOMONS FRANCHISE SYSTEMS PTY LTD

Applicant

AND:

NO. 1 RABEREM PTY LTD

Second Applicant

AND:

NO 2 RABEREM PTY LTD

Third Applicant

AND:

NO. 3 RABEREM PTY LTD

Fourth Applicant

AND:

TAYDEX PTY LTD

First Respondent

AND:

MICHAEL ROY PARR

Second Respondent

AND:

CLIVE JOHN WALKER

Third Respondent

JUDGE MAKING ORDER:          Kiefel J.

DATE OF ORDER:   27 July 1995

WHERE MADE:   Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.                The applications be dismissed.

2.                The second respondent pay the applicants' costs of the applications.

3.                The applicants be at liberty to tax their bill of costs immediately.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION   No. VG 30 of 1994

BETWEEN:

SOLOMONS FRANCHISE SYSTEMS PTY LTD

Applicant

AND:

NO. 1 RABEREM PTY LTD

Second Applicant

AND:

NO 2 RABEREM PTY LTD

Third Applicant

AND:

NO. 3 RABEREM PTY LTD

Fourth Applicant

AND:

TAYDEX PTY LTD

First Respondent

AND:

MICHAEL ROY PARR

Second Respondent

AND:

CLIVE JOHN WALKER

Third Respondent

CORAM:   Kiefel J.

DATE:   27 July 1995

PLACE:   Brisbane

REASONS FOR JUDGMENT

(Ex Tempore)

I have before me what must be taken as two applications, for leave to appeal from the order of Drummond J. of 8 June 1995 and for an extension of time within which to apply for leave.  His Honour refused Mr Parr's application to appear for the company which he controls, Taydex Pty. Ltd.  The order made was interlocutory.

Mr Parr appeared today without representation as he has on previous occasions.  He explains that he is unable to afford legal advice or representation.  The explanation for the lateness in seeking leave to bring the appeal is that Mr Parr was undertaking some negotiations and because he has little spare time to devote to this litigation whilst he earns a living.  It is always a matter of some additional difficulty for people who are unrepresented to attend in a timely way to litigation, but it must also be borne in mind that Mr Parr has been before the court on a number of occasions, and I think in the process has had the opportunity, if not to become familiar with the rules, then at least to know to make an enquiry.  There is not a great deal involved in bringing an application for leave to appeal.  It is quite possible that the need to bring the application was overlooked by him, which is to say that he made no enquiry to check the requirements of an appeal which, he says, he always intended.  But, having noted my reluctance to grant an extension, it seems to me appropriate in this case to deal with the application for leave to appeal.  It is well settled that it requires me to be satisfied that his Honour's judgment is attended with sufficient doubt and that injustice would follow were leave not granted.

The issues, when the matter first came before me in April on Mr Parr's first application to appear for the company Taydex Pty Ltd, were twofold.  First, there appeared to be a problem in that he did not have authorisation by the company to act for it.  That was borne out of practical circumstances, which he advises me still have not been overcome.   This was the case when the matter came before Drummond J. and his
Honour referred to it in his Reasons, despite the fact that I had earlier drawn attention to the fact that it needed to be remedied.

The second area of difficulty for Mr Parr was in the sketchy information made available on the first occasion concerning the relationship between Taydex Pty. Ltd. and another company which he controls, Oxgold Pty Ltd.  At the time the matter was before me, it appeared that there had been a loan from Taydex to Oxgold, and it was said that Oxgold was, by some unspecified arrangement, paying accounts for Taydex.  It is not difficult to appreciate that these were matters of concern, given that it was said Taydex had no available funds to pay for legal representation.  It required at the very least, as the authorities suggest, that Mr Parr take the Court into his confidence and provide a full explanation as to the movements of money between these two companies.  That, I think, was highlighted sufficiently in my reasons, and at which time, conscious of the fact that Mr Parr was unrepresented, I indicated that he might bring another application if he had material which dealt properly with those matters.  A further application was brought, and that was the application refused by Drummond J.  At that time, with respect to this issue, his Honour noted that the accounts which were annexed to an affidavit by the accountant still left these matters unexplained.  Moreover the material then disclosed that there has been an increase in the amount of the loan since the time of the accounts exhibited to Mr Parr's earlier affidavit.  Then, the further accounts exhibited showed a significant reduction was made in the amount of that loan by Oxgold.  At the very least this was indicative of activity between the companies and raised the further question as to whether Oxgold, although showing an operating loss on its accounts, was indeed able to meet its
debts despite the assertion by the accountant in the affidavit.  The other matter which remained unexplained was the failure to raise in the accounts of Oxgold the liability that must have been owed to it by Taydex by reason of the arrangement referred to in Mr Parr's affidavit.

Having regard to the state of the material, it could hardly be said that his Honour's judgment was attended with doubt.  Mr Parr says, however, that doubt could be shown if there were a further explanation of the accounts given, although I must say that the explanation proffered in submissions does not appear to me to be cogent.  Nevertheless Mr Parr submitted that he ought to be given the opportunity of putting this material before an Appeal Court.  That seems to me to amount to a concession that the appeal could not succeed without the further evidence.  The appeal would then involve the question as to whether leave ought be given to adduce fresh evidence not before his Honour, which is tested by enquiring whether, with reasonable diligence, that material could have been discovered and made available in the first instance.  Clearly it could have been and should have been, given the observations made by the Court on the first application, that the issue required proper explanation. Given the history of the matter and the opportunities presented thus far, I consider that it would not be unjust in the circumstances to bring this matter to a close.

Counsel for the applicant in the proceedings also points out, and it seems to me to be correct, that a refusal of leave to appeal would not in any event prevent Mr Parr bringing a fresh application for leave to appear on behalf of the company.  This would, however, need to be made on fresh material with a complete and full explanation, and would need to address the problem with his authorisation which has thus not been attended to or not been able to be attended to.  It may well be the subject of an order for costs, since there have been a number of attempts thus far, and unsuccessful, to do so.  If the application were not brought on fresh material however it may be met with a challenge that it amounts to an abuse of process.  But it does seem to me to be a further matter to be taken into account in determining whether it would be unjust to deny leave to appeal. 

In all the circumstances, I consider that his Honour's judgment is neither attended with sufficient doubt to warrant an appeal; nor do I consider that, given the history of the matter and the rights remaining to Mr Parr, it would be unjust to deny leave to appeal.  The application for leave is therefore dismissed.

The order will be that the second respondent, Mr Parr, pay the applicants' costs of the applications and I further order that the applicants be at liberty to tax their bill notwithstanding the provisions of O.62 r 3(3).

I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:          27 July 1995

Counsel for the applicants:   Mr P J Flanagan

Solicitors for the applicants:   Whitman & Co

Second respondent:   In person

Date of Hearing:   27 July 1995

Place of Hearing:   Brisbane

Date of Judgment:   27 July 1995