Stergiou, Stan v Reid, John Ross

[1996] FCA 546

LIMITED DISTRIBUTION

CATCHWORDS

PRACTICE AND PROCEDURE - drafting of statement of claim - order by Master striking out statement of claim - order by Master preventing appellants from filing amended statement of claim without leave of the court - orders interlocutory in nature - leave to appeal required - merits of dispute lacking proper articulation - leave to appeal refused

STAN STERGIOU & ANOR v JOHN ROSS REID & ORS

No. ACT G 64 of 1995

BEAUMONT, HEEREY AND FINN JJ.

CANBERRA

19 JUNE 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
AUSTRALIAN CAPITAL TERRITORY      )    No.ACT G64 of 1995
  )
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE
     SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STAN STERGIOU and

EKATERINE STERGIOU

Appellants

AND:JOHN ROSS REID AND DENNIS MARIO BARBARA AND GAVIN JOHN LEE t/as VANDENBERG REID PAPPAS AND MACDONALD

Respondents

CORAM:    Beaumont, Heerey and Finn JJ.
PLACE:    Canberra
DATE:     19 June 1996

MINUTE OF ORDERS
        (With respect to the appeal from the orders
     made in favour of the first and second respondents)

THE COURT ORDERS THAT:

Leave to appeal be refused, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
AUSTRALIAN CAPITAL TERRITORY      )    No.ACT G64 of 1995
  )
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE
     SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STAN STERGIOU and

EKATERINE STERGIOU

Appellants

AND:JOHN ROSS REID AND DENNIS MARIO BARBARA AND GAVIN JOHN LEE t/as VANDENBERG REID PAPPAS AND MACDONALD

Respondents

CORAM:    Beaumont, Heerey and Finn JJ.
PLACE:    Canberra
DATE:     19 June 1996

REASONS FOR JUDGMENT (No. 1)
       (Appeal against orders made in favour of the
               first and second respondents)

BEAUMONT J:  
         Before the Court is a notice of appeal lodged by Mr. and Mrs. Stergiou against several respondents.  Having heard argument on the matters raised so far as concerns the first and second respondents, we are now in a position to give judgment on this aspect.  The appeal, so far as it concerns the third respondent, will be dealt with separately.  I say nothing about the position of the third respondent at this stage.

Mr. and Mrs. Stergiou have at all times appeared in person by Mr. Stergiou.  Although Mr. Stergiou has purported
to lodge a notice of appeal in respect of the judgment appealed from, it appears, for reasons which I will give shortly, that the appeal itself is incompetent and that, in truth, so far as the first and second respondents are concerned, we should treat the notice of appeal as an application for leave to appeal.

The background to these matters may be shortly stated.  By writ of summons dated 19 July 1995 issued out of the Supreme Court,  the appellants sued the respondents in a statement of claim in which a number of allegations were sought to be made, but advanced in terms which are not easily understood.  That pleading was ordered to be struck out by Master Hogan on 25 August 1995 in respect of the claims then made against the first and second respondents.  The Master further ordered that the appellants not file a further amended statement of claim without the leave of the Supreme Court. 

On 13 October 1995, Higgins J. ordered, in the Supreme Court, that a notice of appeal, dated 19 September 1995, in respect of, inter alia, the first and second respondents, be dismissed and that leave to file an amended statement of claim be declined.  The amended statement of claim is set out at pages 5 and following of the appeal book.  It is not necessary to attempt to summarise it here.  On its face, this pleading suffers from defects similar to that found in the earlier version.
         This description of the events makes it clear, first, that the appeal sought to be brought before this Court is from orders that are, as a matter of form as well as substance, in truth interlocutory and therefore the appeal requires leave; and secondly, that the merits of the dispute between the parties have not yet been clearly or properly articulated in any pleading propounded by the appellants.  In those circumstances, given that no final order dismissing the appellants' claim has been made, then so far as concerns the first and second respondents, it is not appropriate that this Court grant leave to appeal.

The matters sought to be agitated before us today are truly pleading matters only, and they are matters which, in principle, should be resolved in the Supreme Court unless a particular point of substance, for instance, a discrete point of law, should emerge.  There is no indication before us that any such point will, at this stage, arise in the matter.  For those reasons, I would refuse leave to appeal.

HEEREY J:   I agree.
FINN J:  I agree.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate

Dated: 

The appellants appeared in person by Mr. S. Stergiou.

Counsel and solicitors           Mr. G. Blank of counsel,

for the first and second             instructed by Vandenberg

respondents:             Reid Pappas and MacDonald.

Counsel and solicitors           Mr. R.P. Clynes, instructed

for the third respondent:        by Minter Ellison.

Date of hearing:                 19 June 1996

Date Judgment delivered:             19 June 1996