Transpacific Pty Ltd v Prudential Retirement and Annuity Company - [2011] FCAFC 160

FEDERAL COURT OF AUSTRALIA
Transpacific Pty Ltd v Prudential Retirement and Annuity Company [2011] FCAFC 160

Citation: Transpacific Pty Ltd v Prudential Retirement and Annuity Company [2011] FCAFC 160

Appeal from: Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 2) [2011] FCA 1215

Parties: TRANSPACIFIC PTY LTD ACN 073 644 612 v PRUDENTIAL RETIREMENT AND ANNUITY COMPANY, DAVID JOHN WINTERBOTTOM and DAVID PAUL MERRYWEATHER

File number(s): NSD 1867 of 2011

Judges: JACOBSON, YATES AND ROBERTSON JJ

Date of judgment: 9 December 2011

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory orders – at first instance applicant successfully applied for hearing date to be vacated but opposed interlocutory injunction being dissolved – trial judge dissolved interlocutory injunction and ordered applicant to pay costs thrown away by the adjournment on an indemnity basis – application for leave to appeal refused – other interlocutory applications referred to docket judge

Cases cited: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 followed
DecorCorporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 cited

Date of hearing: 9 December 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 26

Counsel for the Appellant: Mr CJ Bevan with Mr D Barlim

Solicitor for the Appellant: Evangelos Patakas & Associates

Counsel for the Respondents: Mr CRC Newlinds SC with Ms FT Roughley

Solicitor for the Respondents: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1867 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
TRANSPACIFIC PTY LTD ACN 073 644 612
Appellant

AND:
PRUDENTIAL RETIREMENT AND ANNUITY COMPANY
First Respondent

DAVID JOHN WINTERBOTTOM
Second Respondent

DAVID PAUL MERRYWEATHER
Third Respondent

JUDGES:

JACOBSON, YATES AND ROBERTSON JJ

DATE OF ORDER:

9 DECEMBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. Leave to appeal from the orders made by Stone J on 19 October 2011 be refused with costs.
2.The Interlocutory Applications filed on 7 November 2011 and 25 November 2011 be referred to the docket judge.
3.Costs of those Interlocutory Applications be reserved to the docket judge.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.  

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1867 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
TRANSPACIFIC PTY LTD ACN 073 644 612
Appellant

AND:
PRUDENTIAL RETIREMENT AND ANNUITY COMPANY
First Respondent

DAVID JOHN WINTERBOTTOM
Second Respondent

DAVID PAUL MERRYWEATHER
Third Respondent

JUDGES:

JACOBSON, YATES AND ROBERTSON JJ

DATE:

9 DECEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
JACOBSON J

I agree that leave to appeal should be refused and I agree with the orders proposed by Justice Robertson for the reasons stated by him.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice…

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.

Continue reading Transpacific Pty Ltd v Prudential Retirement and Annuity Com...

Details

AGLC: Transpacific Pty Ltd v Prudential Retirement and Annuity Company [2011] FCAFC 160
Case: [2011] FCAFC 160
Decision Date: 9 December 2011

CaseChat Overview and Summary

Transpacific Pty Ltd applied to the Federal Court for leave to appeal against interlocutory orders made by Stone J. The orders in question involved the dissolution of an interlocutory injunction and a costs order against Transpacific. At first instance, Transpacific had successfully sought to vacate a hearing date but opposed the dissolution of the interlocutory injunction. Stone J dissolved the interlocutory injunction and ordered Transpacific to pay costs on an indemnity basis. Transpacific's primary legal issue was the refusal of leave to appeal the interlocutory orders. Secondary issues included the handling of other interlocutory applications.

The court assessed the application for leave to appeal and considered whether the interlocutory orders were sufficiently significant to warrant an appeal. The court also considered the effect of Transpacific vacating the hearing date on the proceedings. The court concluded that the interlocutory orders did not meet the threshold for an appeal and dismissed the application for leave. The court referred other interlocutory applications to the docket judge for further consideration.

Transpacific's application for leave to appeal was refused with costs. The other interlocutory applications filed by Transpacific were referred to the docket judge. The costs associated with those applications were reserved for determination by the docket judge. The outcome of the case was a refusal to grant leave to appeal, with costs, and a referral of other interlocutory applications to the docket judge for further consideration.

Orders

Orders of the court

1. Leave to appeal from the orders made by Stone J on 19 October 2011 be refused with costs.

2. The Interlocutory Applications filed on 7 November 2011 and 25 November 2011 be referred to the docket judge.

3. Costs of those Interlocutory Applications be reserved to the docket judge.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Transpacific Pty Ltd v Prudential Retirement and Annuity Company [2011] FCAFC 160
Appeal from:	Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 2) [2011] FCA 1215
Parties:	TRANSPACIFIC PTY LTD ACN 073 644 612 v PRUDENTIAL RETIREMENT AND ANNUITY COMPANY, DAVID JOHN WINTERBOTTOM and DAVID PAUL MERRYWEATHER
File number(s):	NSD 1867 of 2011
Judges:	JACOBSON, YATES AND ROBERTSON JJ
Date of judgment:	9 December 2011
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory orders – at first instance applicant successfully applied for hearing date to be vacated but opposed interlocutory injunction being dissolved – trial judge dissolved interlocutory injunction and ordered applicant to pay costs thrown away by the adjournment on an indemnity basis – application for leave to appeal refused – other interlocutory applications referred to docket judge
Cases cited:	Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 followed DecorCorporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 cited
Date of hearing:	9 December 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Appellant:	Mr CJ Bevan with Mr D Barlim
Solicitor for the Appellant:	Evangelos Patakas & Associates
Counsel for the Respondents:	Mr CRC Newlinds SC with Ms FT Roughley
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1867 of 2011

JUDGES:	JACOBSON, YATES AND ROBERTSON JJ
DATE OF ORDER:	9 DECEMBER 2011
WHERE MADE:	SYDNEY

JUDGES:	JACOBSON, YATES AND ROBERTSON JJ
DATE:	9 DECEMBER 2011
PLACE:	SYDNEY