Total Trading SRL v Nastri & Anor - [2007] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5110 of 2007

TOTAL TRADING SRL
TOTAL TRADING SRL	Applicant
v
LUIGI NASTRI and ANOR	Respondents
LUIGI NASTRI and ANOR	Applicants
v
TOTAL TRADING SRL	Respondent

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APPLICATIONS ON SUMMONS

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JUDGES:	CHERNOV and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2007
DATE OF JUDGMENT:	25 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 244

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PRACTICE & PROCEDURE – Application for leave to appeal against dismissal of originating motion seeking orders that certain documents be treated as confidential and restrained from use in related proceedings – Whether leave required – Whether ‘interlocutory application’ – Whether ‘case of granting or refusing an injunction’ – Supreme Court Act 1986 s 17A (4)(b), s17A(4)(b)(ii).

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APPEARANCES:	Counsel	Solicitors
For the Applicant Total Trading SRL	Mr I G Waller	Clayton Utz
For the Respondents Nastri	Mr P G Cawthorn	John R Morrow

CHERNOV JA
REDLICH JA:

The Court has before it two summonses. By the first summons, filed on 14 September 2007, Total Trading SRL, formerly known as Triulzi Engineering SRL, (‘Total’) which is misdescribed in the summons as the appellant, seeks, in so far as may be necessary, leave to appeal from the decision of a judge of the Supreme Court made on 31 August 2007 dismissing Total's originating motion of 14 March 2007, whereby it sought orders against the respondents, Luigi Nastri (‘Nastri’) and Nastri Nominees Pty Ltd (‘the Nastri company’) in respect of certain documents.

By the second summons, filed on 3 October 2007, Nastri and the Nastri company, who are misdescribed in the summons as the respondents, seek orders that Total's appeal filed on 7 September 2007 against his Honour's decision be dismissed as incompetent under r 64.03(4) of the Supreme Court Rules and that Total provide security for their costs of the appeal and pay the costs below into court pending the hearing and determination of the appeal.

It is necessary to refer briefly to the relevant background circumstances. Total is a company that is incorporated in Italy and at all material times has been controlled by one Giovanni Jemma (‘Jemma’). Nastri is a director and controller of the Nastri company. He and Jemma were childhood friends from Italy, and although Nastri has lived in Australia for about 40 years, Jemma remained in Italy; he does not speak English. In 2002, Total instituted proceedings (‘the Alessi proceedings’) in which it sought the return of manufacturing equipment from 15 defendants. It also claimed damages. On 7 May 2003 Total obtained summary judgment for possession of the equipment but its claim for damages remains outstanding. As his Honour observed, this proceeding appears moribund, having been adjourned sine die by consent of the parties in 2005.

It is apparent from his Honour's reasons that Nastri provided considerable assistance to Jemma in the Alessi litigation. In the course of it, Nastri came into possession of a number of Total's documents, including reports written in English from Total’s solicitors that had been sent to Jemma. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSCA 244
Decision Date: 25 October 2007

CaseChat Overview and Summary

Total Trading SRL lodged an application in the Supreme Court of Queensland seeking leave to appeal the dismissal of their originating motion, which sought orders for certain documents to be treated as confidential and to be restrained from use in related proceedings. The respondents, Nastri and another party, opposed the application for leave to appeal, arguing that it was not necessary to grant leave due to the nature of the application. The dispute centred on whether the application for leave to appeal constituted an interlocutory application and, if so, whether it fell within the category of a 'case of granting or refusing an injunction' under section 17A(4)(b) and (b)(ii) of the Supreme Court Act 1986.

The court considered the nature of the application and whether it was an interlocutory application. It examined whether the application involved an urgent or interim matter that required the court's immediate attention to prevent injustice. The court also assessed whether the application involved the granting or refusal of an injunction, which is a category of interlocutory application that may warrant leave to appeal under section 17A(4)(b)(ii) of the Supreme Court Act 1986. The court further deliberated on the necessity of granting leave to appeal based on the potential consequences of the decision on the confidentiality and admissibility of the contested documents in the related proceedings.

The court concluded that the application for leave to appeal did not constitute an interlocutory application for the purposes of section 17A of the Supreme Court Act 1986. It found that the application did not involve an urgent or interim matter requiring immediate judicial intervention to prevent injustice. Additionally, the court determined that the application did not fall within the category of a 'case of granting or refusing an injunction' as it did not involve an application for an injunction. Consequently, the court dismissed the application for leave to appeal.

The court did not make any further orders regarding the confidentiality or admissibility of the contested documents. The decision highlights the importance of the proper classification of applications for leave to appeal and the stringent criteria that must be met to obtain leave, particularly in relation to interlocutory applications and injunctions. The court's ruling underscored the need for applicants to carefully consider the nature of their application and the applicable legal provisions when seeking leave to appeal.

Orders