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Treloar v Australian Telecommunications Commission

Treloar v Australian Telecommunications Commission

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Case Copied 20 August 1990 15 min read

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1 :;

IN THE FEDERAL COURT OF AUSTRALIA 1
QUEISNST,ANT) DTSTRTC'J' REGIS'PRY

) Q T A . NO G16 of 1990 I

l I

GENERAL DIVISION )

f ~

BETWEEN: RussellGordon IIaiq MATHEWS and Russell Gordon IIaia MATHEWS as Trustee for

I
1 .-

NO. 1 T.1.P.S. OFFICE TRADING UNIT TRUJ i
Applicant

AND: AUSTRALIAN TELECOMMUNICATIONS CORPORATION

Me1 Ward, Manaqinq Director, Stan Moon. Companv Secretarv, Ian Row. Corporate Solicltor, James Molmes, Actina Company
Secretary, Geoffrey Cohen. Senior Partner,. pp --
ArLhur Andersen & Co., John Burrows,

Manaaina Partner Australia, Arthur \
Andersen & Co.. Arthur Andersen & Co.
(a firm1 i
1.
Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: SPENDER J.
DATE OF ORDER: 20 AIJGUST 1990
WHERE MADE: BRISBANE
THE COURT ORDERS THAT:

1. ,

(1) The applicant is granted an extension of time in t
which to appeal against the judgment of 4 June 1990

to 4 pm, 20 August 1990. l )
.-

\ I :

(ii) Leave to appeal from the judgment of 4 June 1990 is .-

declined. i

Settlement and entry of orders is dealt with in

Order 36 of the Federa 11 Court Rules.
' ',

IN THE FEDERAL COURT OF AUSTRALIA 1
QUEENSLAND DISTRICT REGTSTRY

1 QLD. NO. G16 of 1990
GENERAL DIVISION )

BETWEEN: Russell Gordon Haio MATHEWS and Russell

Gordon Haio MATHEWS as Trustee for
NO. 1 T.I.P.S. OFFICE TRADING UNIT TRUST

Applicant

AND: AUSTRALIAN TELECOMMUNICATIONS CORPORATION

Me1 Ward. Manaoina Director. Stan Moon. Companv Secretarv, Ian Row, Corporate Solicitor. James Holmes, Acting Company Secretarv. Geoffrev Cohen. Senior Partner. Arthur Andersen & Co., John Burrows, Manaoina Partner Australia. Arthur Andersen & Co., Arthur Andersen & Co.
(a firm1
Respondent

SPENDER J.
BRISBANE

20 August 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a notice of motion filed on 9 August 1990
which seeks orders, first, that leave be granted to Russell

Gordon Haig Mathews to be allowed an extension of time in

which to lodge notice of appeal "...to the decision of Spender J in the Federal Court delivered 4 June 1990 in this matter;"

and, secondly, upon granting of such extension of time that "leave be granted to Russell Gordon Haig Mathews to appeal on the above matter delivered on 4 June 1990." On that day in proceedings between Mr Mathews and Mr Mathews as trustee for No. 1 T.I.P.S. Of £ice Trading Unit Trust and the present respondents, I ordered that Application No. G16 of 1990 be dismissed, and I made orders as to costs. That judgment was

L

in respect of a notice of motion, seeking to dismiss an application to the court on the basis that no reasonable cause of action was disclosed, or that the proceeding was vexatious, or was otherwise an abuse of process of the court.

In support of this present motion Mr Mathews filed an affidavit on 14 August 1990 and made submissions today. He seeks to point out that the only realistic avenue for justice presently left to him is an appeal…

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: [1990] FCA 511
Decision Date: 20 Aug 1990

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Treloar v Australian Telecommunications Commission involved a motion filed by Russell Gordon Haig Mathews, both individually and as trustee for No. 1 T.I.P.S. Office Trading Unit Trust, against the Australian Telecommunications Corporation. The motion sought an extension of time for lodging a notice of appeal against a previous judgment delivered on 4 June 1990, which dismissed an application brought by Mathews and ordered costs. Mathews argued that the dismissal of his initial application was erroneous and sought leave to appeal this decision.

The legal issues before the court were whether Mathews was entitled to an extension of time to appeal the interlocutory nature of the dismissal order and whether leave to appeal should be granted. The court considered whether the dismissal order was interlocutory and if the delay in Mathews' application for leave to appeal warranted an extension of time. Furthermore, the court had to determine if the appeal presented a matter of sufficient importance or doubt to warrant consideration by the full court.

Spender J. determined that the order dismissing the initial application was indeed interlocutory, as it did not finally dispose of the rights of the parties. The court acknowledged that Mathews had initially believed he had an appeal as of right due to this interlocutory nature, which led to the delay in filing his notice of appeal. The judge granted an extension of time to Mathews to apply for leave to appeal. However, the court declined to grant leave to appeal on the grounds that Mathews' proceedings, if allowed to continue, would cause embarrassment and injustice to the respondents. The court emphasized that the refusal of leave to appeal would not cause substantial injustice, as it did not preclude Mathews from pursuing a properly pleaded cause of action. The court concluded that the appeal did not involve an error of principle or sufficient doubt to merit full court consideration. Mathews was ordered to pay the respondent's costs of the motion.

Orders