Talk of the Town Pty Ltd v Hagstrom, L.

[1990] FCA 640

JUDGMENT No. d.&.O./...k

D THE FEDERAL COURT OF AUSTRALIA ) QG 107 of 1990

SLAND DISTRICT REGISTRY )

GENERAL DIVISION 1

BETWEEN a TALK OF THE TOWN PTY. LIMITED

Applicant

AND :  LLOYD HAGSTROM

First Respondent

AND r JUiRCO EXTRUSIONS PTY. LTD.

Second Respondent

MINUTES OF ORDER

:	-	PINCUS J.
JJATE OF ORDER:	11 OCTOBER 1990
IWzm MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The time be extended so far as necessary to enable the application for leave to appeal to be made.

2.    Leave to appeal be granted.

3.   The costs of and incidental to the application be costs in the appeal.

4. Orders number 2 , 3, 4, 5 , 6 and 7 made on 21

September 1990 be vacated. orders is dealt with in

U THE FEDERAL COURT OF AUSTRAL14 1 QG 107 of 1990

RICT R E G I S W 1

GENERAL DIVISION 1

BETWEEN: TALK OF THE TOWN PTY. LIMITED

Applicant

AND: LLOYD HAGSTROM

First Respondent

AND:  N C O EXTRUSIONS PTY. LTD.

Second Respondent

C O W : PINCUS J.

m r BRISBANE

m: 11 OCTOBER 1990

EX TEMPORE REASONS FOR JUDGMENT

This is an application for leave to appeal from an interlocutory judgment. The application is made out of time. The rules were amended by Rule No. 50 of 1989. It seems that the applicant's solicitors were not aware of the amendment, although they should have been.

Nevertheless, the circumstances are such that, no prejudice being suggested, I think I should, and I do, extend	the time so far as necessary to enable the application to be
made.
The more difficult question is whether, as a substantive matter, the applicant should be allowed to go to the Full Court now. The basis of the application for leave appears to be the suggestion that because the reasons contain some views of law which are not stated to be other than final, therefore, they give rise to an estoppel or may do so. That appears to me to be incorrect, and I refer to Halsbury, Fourth Edition, Volume 16, paras 1518, 1563. The Full Court of the Supreme Court of Queensland in a similar case, namely PRD La Coeta Manaaement Ptv. Ltd. v . The Pro~rietors "Beach~oint"
Building Unite Plans No. 3149 [l9851 2 Qd.R. 227, said at 229:

"If a Judge comes to a conclusion, on hearing an
application for an interlocutory injunction,
that a question of law upon which the
applicant's right to relief depends must be
determined against him, it will in my opinion
be a proper exercise of his discretion to
dismiss the application. The ieeue before a
court of appeal will then be whether his
decision on the question of law was right".

Mr. Dutney, who has resisted the application made on behalf of the applicant today, points out that if the matter is allowed to go to the Full Court now that Court will not necessarily do what wae suggested in the case. It may content itself to say that there is a serious question to be tried.

While one must concede that possibility, the view which I take of the matter is influenced by being told by Mr. Applegarth, for the applicant, that in his view of the questions on which they failed before me, the evidence would not add very much to the applicant's case if the matter went to trial. That is, Mr. Applegarth's view appears to be that the evidence from his point of view is such as to fairly raise the questions on which he lost.

Mr. Dutney points out that even if the appeal succeeds then there will be issues to be tried and Miss Wilson makes the same point. The view which I have is that although there would still be questions to be tried, the most important points in the case seem to be those which were determined in interlocutory proceedings.

I do not agree with Mr. Applegarth's suggestion that that gives rise to an eatoppel in either case. That seems to me to be incorrect. I also take into account against the applicant, that, as it appears to me, the course which was suggested by senior counsel of deciding these legal questions was not objected to.

Nevertheless, I am firmly of the view that the applicant should be allowed to take these points to the Full Court now. They are both arguable questions. As to one of them the applicant has the support of a judgment of an appellate court in New Zealand and the other one is also, in

my opinion, an arguable point.

I do not say that taking the matter to the Full Court will necessarily work out to be the most convenient thing to have done, but exercising the best judgment I can, I regard it as a convenient course. I am also influenced by the fact that if the judgment I have given is wrong, then the applicant hae failed to obtain an injunction which eeeme to me, in the circumstances, to be a serious matter and its failure to do so would, on that hypothesis, now be causing it a significant injustice.

In the whole of the circumstances, I have decided to extend the time, as I have mentioned, and to grant leave to appeal. The costs of the application will be costs in the appeal.

I will vacate the orders for directions which I made on 21 September, namely orders numbers 2, 3, 4, 5, 6, 7.	I
will not vacate orders numbers 1 and 8, which still stand. Order number 1 is the order disposing of the interlocutory proceeding and order number 8 is the order for costs.

I certify that this and the three preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

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