Stergiou, Stan v Reid, John Ross
[1996] FCA 544
•19 Jun 1996
LIMITED DISTRIBUTION
CATCHWORDS
PRACTICE AND PROCEDURE - Appeals from orders, some interlocutory, others final, of a Master under s.9(2) of the Supreme Court Act 1933 (A.C.T.) - purported appeal as of right to Full Court from orders which are not interlocutory in character - order for summary judgment entered by Master under O.17 of the Supreme Court Rules - orders final in character - appeal heard by single Judge of the Court - Judge has no jurisdiction - appeal allowed in part
Supreme Court Act 1933 (A.C.T.), s.9
STAN STERGIOU & ANOR. v JOHN ROSS REID AND 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 G 64 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 claims against the third respondent)
THE COURT ORDERS THAT:
Leave to appeal against the order of the Supreme Court restraining the appellants from commencing any further action against the third respondent, without the leave of that Court, be refused.
The order of Higgins J. dismissing the appeal against the order of Master Hogan be set aside, so far as that order entered judgment for the third respondent.
The aspect of the appeal dealt with in order (2) be remitted for hearing before a Full Court of the Supreme Court of the Australian Capital Territory.
No order as to costs in the present connection.
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 G 64 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. 2)
(The appeal against the orders
made in favour of the third respondent)
BEAUMONT J:
The Court will now give judgment on the remaining aspect of matter number 64 of 1995, which concerns the appellants' claims against the third respondent. The background to this aspect of the matter has already been described in "Reasons for Judgment (No. 1)", given earlier today, involving the appellants' claims against the first and second respondents.
The orders of Master Hogan made on 25 August 1995 included an order that judgment be entered for the third respondent against the plaintiffs. This order was made by the
Master pursuant to an application by the third respondent for summary judgment under O.17 of the Supreme Court Rules. On 25 August Master Hogan further ordered that the appellants be restrained from commencing any further action against the third respondent without first obtaining leave of the court to institute proceedings.
As has been mentioned in the earlier reasons for judgment, the appellants purported to file an amended statement of claim in this matter dated 27 September 1995. That statement of claim included the third respondent as one of the defendants.
On 13 October 1995, Higgins J. ordered that the notice of appeal dated 19 September 1995 against the orders of Master Hogan be dismissed in respect of the first, second and third respondents and, as has been earlier noted, that leave to file the amended statement of claim then propounded be declined.
Mr. Clynes, who appeared for the third respondent, has submitted that, so far as concerns his client, some of the orders made by Higgins J. on 13 October were interlocutory, but that one of those orders was final. It is submitted, and I accept, that the orders made by Higgins J. were final so far as they dismissed the principal proceedings against the third respondent. However, it is further submitted, and again I accept, that those orders of Higgins J. which enjoined the appellants from commencing any further action against the third respondent save with the leave of the Supreme Court, and which declined to accept the amended statement of claim, were interlocutory. That being so, leave to appeal is required from the last two orders mentioned.
So far as concerns the order of the Master granting the injunction against the appellants, it appears clearly enough that there was power to grant that injunction in the exercise of the court's inherent jurisdiction to restrain an apprehended abuse of the processes of the Court. The grant of such a remedy is, of course, discretionary and its exercise must depend upon the particular circumstances of the case. As a matter of practice and procedure, it is an area in which leave to appeal would rarely be granted. In my opinion, there is nothing exceptional in the present case, and no point of principle which appears to emerge, which would justify the intervention of this appellate Court by the grant of leave to appeal in this respect. I would therefore refuse leave to appeal against those orders.
However, as I have said, in so far as Higgins J. ordered the dismissal of the final proceedings as against the third respondent, that order was final and there is accordingly an appeal as of right. Mr. Clynes has pointed out that it appears - and again I agree with the submission - that the learned primary Judge was acting without jurisdiction in entertaining an appeal against a final order of the Master. By s.9(2) of the Supreme Court Act 1933, it is provided as follows:
"(2) A person who is dissatisfied with a judgment of the Master made in the exercise of jurisdiction conferred by Rules of Court may appeal, as prescribed by the Rules of Court:
(a)in the case of an interlocutory judgment - to the Court constituted by a single Judge; and
(b)in the case of any other judgment - to the Full Court."
As I have said, the order dismissing the proceedings was not interlocutory. It therefore fell within the provisions of s. 9(2)(b) of the Supreme Court Act. It follows that an appeal lay only to a Full Court of the Supreme Court and not to a single Judge.
It is true that the orders made by the Master, and by Higgins J. on appeal, had a mixed character: in certain respects those orders were final; and in other respects they were interlocutory. However, under the provisions of O.17 of the Supreme Court Rules it is provided in r.1 that any defendant to an action may apply for summary judgment. Clearly, that provision is to be read distributively. Moreover, in my view, a distributive construction should also be given to s.9(2) of the Supreme Court Act; that is to say, it is possible that a judgment of the Master may in certain aspects, and vis-a-vis certain parties, be interlocutory, but in other aspects, and in respect of other parties, such a judgment may be final.
Leave to appeal was required to entertain the appeal from the Supreme Court to this Court from the interlocutory orders made by Higgins J. At the same time, an appeal from the orders made by Master Hogan, so far as they were interlocutory, could be entertained by a single Judge. However, so far as the orders made by Master Hogan were final, an appeal lay only to a Full Court of the Supreme Court.
It follows that I would to this extent allow the appeal and, accordingly, I would set aside the final order made by Higgins J. I would order that this aspect of the appeal be remitted for hearing before a Full Court of the Supreme Court of the Australian Capital Territory.
Given that each party has had some measure of success, and lack of success, on this aspect, I would make no order for the costs in the present connection.
HEEREY J: I agree.
FINN J: I agree.
I certify that this and the preceding six (6) 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
respondent:Reid Pappas and MacDonald.
Counsel and solicitors Mr. R.P. Clynes of counsel,
for the third respondent: instructed by Minter Ellison.
Date of hearing: 19 June 1996
Date Judgment delivered: 19 June 1996
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