Stewart, N.M. v Glenpitney Pty Ltd

[1987] FCA 136

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD G169 of 1986
GENERAL DIVISION	)

BETWEEN: NANCY MARIS STEWART and ADAM HUNTER STEWART

Applicants

AND: GLENPITNEY PTY. LTD.

First Respondent

AND: HAROLD KUCKO

Second Respondent

AND: LLOYD JOHN WILLIAMSON

Third Respondent

MINUTES OF ORDER

MAKIN JUDGE ORDER: PINCUS J.

DATE OF ORDER: 19 MARCH 1987

WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

(1) Pursuant to 0 . 5 2 , r.lO, time for making the oral

appllcatlon contemplated by r.10, subr.1	1 s
extended to 19 March 1987;

( 2 ) The application for leave to appeal be dlsmlssed;

( 3 ) The third respondent (to the original proceedings)

pay the applicants' costs of and incidental to the

appllcation for leave to appeal to be taxed;

( 4 )	The application for leave to appeal from order no.	. -
( 2 ) above be dismissed.

m: Settlement and entry of orders is dealt Order 36 of the Federal Court Rules.

- c' J.2 ,787

7 , ,:,.-.,;

IN "HE FEDERAL COURT OF AUSTRALIA )

!NEEXSLAND DISTRICT REGISTRY	)	QLD	G169	of 1986
GENERAL DIVISION	)

B-N: NANCY MARIS STEEIART and ADAM HUNTER STEWART

Applicants

AND: GLENPITNEY PTY. LTD.

First Respondent

AND: HAROLD KUCKO

Second Respondent

AND: LLOYD J O H N WILLIAMSON

Third Respondent

PINCUS J. 19 MARCH 1987

EX TEMPORE REASONS FOR JUDGMENT

This is an applicatlon for leave to appeal from an

interlocutory ludgment of mlne dellvered on 2 March 1987. No

appllcatlon was made ora l ly at the tlme of delivery of ~udgment,

but Mr. Boyce Q.C., senlor counsel for the applicant, asks that

time be extended now to allow such an application under 0.52,

r.l(l), and that will be ordered.

The principal question dealt with in my judgment of 2

March was whether the claim made by the applicants against the

third respondent in the principal proceedings, a director of the

L .

first respondent, was o pleaded as to bring the case within	s.75B
of the Trade Practices Act 1974.

In dealing with this application, I shall give the

parties the designations they have in the principal proceedings.

The third respondent argued before me, when the matter

was first discussed, that the pleading was inadequate and that the

principal application should be struck out or that the statement

of claim should be struck out, with leave to replead. When I

delivered my judgment of 2 March 1987, counsel for the applicants

drew my attention to the fact that further particulars in the

statement of claim had come into exlstence. However, I declined

to consider them at that stage and delivered my ~udgment in favour

of the appllcants, dismlssing the thlrd respondent's challenge	to
the appllcation.

Mr. Boyce Q.C. now argues that my ~udgment is attended

with sufflclent doubt to ~ustlfy an appeal, In which the

appllcation of the Hlgh Court's decision m Yorke v. Lucas (1985)

61 A.L.R.	307 to the allegations In	the pleadmgs could be
agltated.

There does not appear to be any decision of the Full

Court which has laid down a test on the basis of whlch one might determine whether leave to appeal from an interlocutory judgment

should be granted. That questlon was, however, debated by counsel

before me. Senior counsel for the applicants, Mr. Russell Q.C.,

3 .

sought to rely on principles applied by the Court of Appeal in

England on applications for leave to appeal to the House of Lords.

I note that in Randall v. Jet Corporation of Australia

Pty. Ltd. (unreported, 5 July 1985), Woodward J. referred to

Niemann v. Electronic Industries Ltd. E19783 V.R. 431 at p.439 in

connection with an appllcation of this sort, saying that:

"An applicant for leave to appeal In interlocutory

proceedings such as t ese must how that

substantial injustice would follow from a refusal."

In B.H.P. Petroleum Pty. Ltd. v. Oil Basins Ltd. C19857 V.R. 756,

the Victorlan Full Court applied the principles that it was

necesary to show -

the declsion was attended with sufficient doubts to	~ustlfy
granting leave and, in addition

substantial in~ustice would be done by leaving the matter

unreversed.

Although, as I have said, the question was discussed by

counsel, it does not appear to me necessary to attempt to

enunciate any general principle on which to declde this

application, because the case before me 1 s not one whlch requires

that to be done. It is really an attack on a pleading.

In general, it seems to me unlikely that it would be a

proper course to grant leave to appeal from an interlocutory

I .

i. 4 .

judgment involving questions of pleading only, unless it appears that the appeal’s result is likely to effect the resolution of a

question of law basically involved in the proceedings. One of the

inherent disadvantages of allowing appeals to the Full Court on

mere pleading points not of that character is that pleadings may

change, with the result that considerable costs and time may be

thrown away in determining matters of only transitory importance.

Here, I had the impression that counsel were agreed that, if the

appeal were successful, the result would probably be the

production of a further statement of clalm and not the end of the

proceedings.

The present question exemplifies the propositlon I have

mentioned, because the pleadings I dlscussed in my ~udgment of 2

March have already changed in a slgniflcant way.

Applying the test mentioned, I am of the view that It 1 s

unlikely that a successful attack on my ~udqment of 2 March would

resolve any question of any vltal Importance to the proceedings

or, indeed, any legal question whatever. It would be concerned

with matters mentioned by Mr. Boyce Q.C. before me, such as

whether allegatlons in the pleadings are ambiguous, whether

interrogatories directed to the Issues raised by the pleadings

would be merely fishing, and matters of that sort.

If one were to apply, instead, the broader test laid

down in the Supreme Court of Victoria, I do not see that any

substantial injustice would be caused to the third respondent if

my order of 2 March were to stand.

5.

I should say something about a question which was

debated, namely whether it is right at this stage to look at the

further particulars discussed above, which were not taken into

account in my judgment sought to be attacked. In my opinion,

although those particulars cannot affect the question of the

correctness of that judgment, it is right to note their existence when exercising the discretion whether to grant leave to appeal.

That 1s so because the particulars give practical point to the

consideration mentioned above, namely that the decision of the me would not resolve any issue of importance in the case.

However, even ignoring those further particulars, it

seems to me clear that thls is not the sort of case in which leave

should be granted. Some pleading points may, as I have said,

relate to matters of basic importance In the proceedlngs whlch, If

determined in advance of trlal, would substantlally affect the

course of events there. But there 1 s In my vlew a prlma facie

case against having the Full Court consider not whether findings

of fact amount to a case havmg a good legal foundatlon, but

whether the allegatlons of fact of the applicants, whlch may or

may not ever be made out, amount to such a case. It was no doubt

for reasons of thls kind that, a century ago, the process of

demurrer was abollshed ln England.

The orders will be -

(1) that under 0.52, r.10 time for making the oral application

contemplated by r.10, subr.1 is extended	to today, 19	march
1987; and

6.

( 2 ) that the application for leave to appeal is dismissed.

It has been argued by junior counsel for the third

respondent that the order for costs asked for by the applicants

should not be made, on the ground that the application for leave

failed partly because of the further particulars. Although I

expressed the view that I should take those partlculars into

account, I am also of the oplnion, as I have sald, that whether or

not they are taken into account, the applicant should fail.

It will therefore be ordered that the thlrd respondent

pay the applicants’ costs of and lncldental to the application f o r

leave to appeal, to be taxed.

Counsel for the third respondent now asks for leave to

appeal pursuant to 0 . 5 2 , r.10 ln respect of my refusal of leave.

That application for leave to appeal 1s a l so refused.

: certtfy that thls and the 5 preredl-g

pages ar2 a truz copy of tt ie reasons for

ludgrrent hcreln of His Honour

Mr. Justice Plncus I ,&