Treloar v Australian Telecommunications Commission

[1990] FCA 511

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 to the full court from my judgment of 4 June 1990. He submitted that the quality of justice was not absolute but had to be qualified by the financial resources available to a person, and that the imbalance of the present case entitled him to some concession for deficiencies that may appear in the proceedings as pleaded. He says in paragraph 9 of that affidavit:

" The a p p l i c a n t was p r e v i o u s l y o f t h e bel ief t h a t

an appeal from t h i s d e c i s i o n was o f r i g h t and

was r e q u i r e d to be lodged w i t h i n 21 d a y s .

Accord ing ly , a document purpor t ing to be a

No t i ce o f Appeal was lodged on t h e 25 th o f June

i n r e l a t i o n t o t h i s m a t t e r . I t was unknown to

t h e a p p l i c a n t t h a t appeal was o n l y by way o f

l e a v e and t h a t such a p p l i c a t i o n for l e a v e had

t o be submi t t ed w i t h i n 7 d a y s . "

He spoke of other difficulties which caused him delay. The notice of appeal which is sought to be relied on in this case is not particularly helpful, but it is in the same terms as the document which Mr Mathews presented to the Registry on 25 June 1990. The notice of appeal which Mr Mathews seeks to prosecute specifies as the grounds of the appeal simply that the judgment is wrong in equity and/or in law and/or in fact, the judgment repudiates the (tenets) of natural justice, and the judgment is oppressive. And the order sought was that the "...decision to dismiss the proceedings and to award costs be reversed and that only so much of the pleadings be amended by the court so as not to prejudice the rights of the respondents or the applicants."

It might at first blush be thought unusual that an order dismissing an application with costs was interlocutory in character. And in that circumstance the belief of Mr Mathews initially that he had an appeal as of right is understandable. However it appears, as the High Court indicated in v. The Nominal Defendant (1966) 117 C.L.R. 423, on the basis of the authority referred to therein, that an order dismissing an action that is vexatious is properly to be characterized as interlocutory. Mr Justice Taylor said at

" A g r e a t d e a l h a s been s a i d c o n c e r n i n g the

d i s t i n c t i o n b e t w e e n f i n a l and i n t e r l o c u t o r y

o r d e r s b u t i t h a s , i n the m a i n , been the

practice o f c o u r t s t o c o n f i n e t h e m s e l v e s t o

a c o n s i d e r a t i o n o f the c h a r a c t e r o f the

p a r t i c u l a r	o r d e r	i n	a u e s t i o n	i n	e a c h	c a s e .
I n d e e d ,	i n	In	re	~ a a e ;	v.	F l a d a a t e

r19101 1 C h a n c e r v 489 Cozens-Hardv M.R.

.,

cornmeiced h is judgment by s a y i n g :

' I	h a v e no	intention o f a t t e m p t i n g the t a s k
o f	d e f i n i n g e x h a u s t i v e l y or	a c c u r a t e l y the

mean ing o f a n inter1 ocu tory o r d e r . I

l e a v e t h a t to others. T h e only point we

h a v e	to	d e c i d e	here	i s w h e t h e r	the	o r d e r
i n	t h i s	p a r t i c u l a r	c a s e	i s a n	o r d e r	wh ich
m u s t	be	a p p e a l e d	a g a i n s t	w i t h i n	the	t i m e

l i m i t e d	for	a p p e a l s	from	i n t e r l o c u t o r y
o r d e r s '	[ l 9 1 0 1 1 Ch.	a t p .	491.	'

' O t h e r s ' h a v e , however , not , i n g e n e r a l .

a t t emp ted the t a s k which t h e Master o f R o l l s

d e c l i n e d	t o	under take .	However,	a t	an
e a r l i e r	s t a g e	Lord	A1 v e r s t o n e ,	C . J . ,	when

c a l l e d upon t o s a y whe ther a p a r t i c u l a r

o r d e r was i n t e r l o c u t o r y o r f i n a l s a i d :

' I t seems t o me t h a t t h e r e a l test for

d e t e r m i n i n g t h i s q u e s t i o n ought t o be

t h i s : Does t h e judgment o r o r d e r , a s made,

f i n a l l y d i s p o s e o f the r i g h t s o f the

p a r t i e s 7 I f i t d o e s , t h e n I t h i n k i t

ought t o be t r e a t e d a s a f i n a l o rder ; b u t

i f it does n o t , i t i s t h e n , i n m y o p i n i o n ,

an i n t e r l o c u t o r y o r d e r ' : Bozson v.

A l t r i ncham Urban D i s t r i c t Counci l [ l 9 0 3 1 1

K.B. 547, a t pp. 548-549.'

Much t h e same tes t h a s been proposed on o t h e r

o c c a s i o n s and, i f I may s a y so w i t h r e s p e c t , i t

p r o v i d e s	a	broad	test	which	i s unexcep t i onab l e .
S o an	o r d e r made	i n t h e c o u r s e	o f an	a c t i o n	o r

s u i t which does n o t conc lude the r i g h t s o f t h e

p a r t i e s i n t e r se, a l t hough i t may, o f c o u r s e ,

conc lude	t h e f a t e	of	t h e p a r t i c u l a r	a p p l i c a t i o n
i n which	it	i s made,	i s i n t e r l o c u t o r y o n l y .	On
t h i s b a s i s	an	o r d e r	s t a y i n g proceed ings	a g a i n s t

one o f s e v e r a l d e f e n d a n t s on t h e ground t h a t

t h e y a r e	scandalous ,	v e x a t i o u s	and	an	abuse	o f
t h e process	o f	t h e Cour t	h a s	been	t r e a t e d	a s

i n t e ; l ocu to ry :  Hind v. Marquis o f Har t i na ton

118901	6	T.L.R.	267.	The same	v i e w was	t a k e n
o f	an	o r d e r	s t r i k i n g	o u t	a	p l a i n t i f f ' s

s t a t e m e n t o f c l a i m on t h e ground t h a t i t

d i s c l o s e d n o r e a s o n a b l e cause o f a c t i o n . Jones

v.	Insole	(1891) 64 L.T.	703 and o f an o r d e r
d i s m i s s i n g an	a c t i o n a s	f r i v o l o u s	and

v e x a t i o u s , i n In re Paae [ l 9 1 0 1 1 Chancery 489. "

Cozens-Hardy M.R., Fletcher-Moulton and Buckley LJJ.,	In the last case, the Court of Appeal constituted by Lord
concluded that an order dismissing an action as frivolous and vexatious is for the purpose of appeal an interlocutory order.
The Master o f the Rolls said at 493:

" I t i s , on p u b l i c grounds and on grounds o f

good sense, a m a t t e r o f e x t r eme impor tance

t h a t an appeal from an o r d e r d i s m i s s i n g an

a c t i o n a s b e i n g f r i v o l o u s and v e x a t i o u s

shou ld be d i s p o s e d o f by t h e Court o f

Appeal, if disposed of at all, in the shortest possible time, and if there were no authority to assist us I should be disposed to come to the conclusion that an order of this kind ought to be treated as an interlocutory order. "

His Lordship then concluded that there was authority anyway to the effect that the order was interlocutory in kind.

As to the question in the present case of extension of time to seek leave to appeal, it seems to me, having regard to the material and conduct deposed to in paragraph 9 of the affidavit of Mr Mathews, that it would be wrong to deny leave to appeal on the basis that the application for leave had been shortly delayed, and I grant an extension of time within which leave to appeal from my judgment delivered on 4 June 1990 might be made to today.

On the principal question, however, whether leave to appeal should be granted, it has to be said that while the earlier dealings of the court with this matter indicated the recognition that Mr Mathews had a genuine grievance in respect

Townsville, or at least companies with whom he was associated	of conduct by Telecom in relation to telephone services in
may have had such a grievance, the judgment of 4 June 1990 was concerned with a broader question, which was whether allowing the proceedings to remain on foot would involve embarrassment and injustice to the respondents to the principal proceedings.
I have repeatedly indicated my sympathy for a person who is
not legally qualified who is called upon to formulate difficult causes of action, but such concern cannot obviate the immediate requirement that persons who are respondents to proceedings should not be prejudiced as the result of proceedings pleaded in this court. For leave to appeal to be granted, what has to be shown is that the matter is one of importance or that the original decision was attended with sufficient doubt as to make it desirable for the matter to be authoritatively considered by an appeal court. It also has to be considered whether if leave is refused substantial injustice will be caused.
The position is that the order that I made does not shut out Mr Mathews from pursuing a properly pleaded cause of action. It does not create an estoppel, and in my opinion it would not cause substantial injustice if leave were to be
re£ used.
As to the question of whether an error of principle or a matter of doubt such as to call for the consideration of an appeal court is involved in my consideration of the notice of
motion leading to the judgment on 4 June 1990, in my opinion this is not a case where special leave should be granted. It
might be thought an invidious task to have to consider the question of special leave from one's own judgment, but the fact of the matter is that regardless of one's personal views as to the merits or otherwise of that judgment, there are broader considerations which have to be considered, and it seems to me that I am in a favoured position in respect of those broader matters. I am of a like mind to that of Chitty J. in Price v. Phillips (1894) 11 L.T. 86. In that case a motion was made to strike out a statement of claim and to dismiss the action as frivolous and vexatious. Chitty J. acceded to the motion and dismissed the action. He then went on to decline leave to appeal from his judgment, stating that inasmuch as actions like he was dealing with should not be encouraged, he believed it to be merciful to decline leave to appeal.
In my opinion, this is a case where leave to appeal ought to be refused, not least because it is merciful to do so. In the result I grant an extension of time within which leave to appeal can be sought. I decline to grant leave to appeal from my decision delivered on 4 June 1990. The applicant on the motion is to pay the respondent's costs of the motion, to be taxed if not agreed.

I c e r t i f y t h a t t h i s and t h e 6

( s i x ) p r e c e d i n g	pages	a r e	a	t r u e
c o p y o f	t h e	r e a s o n s	f o r	judgment

h e r e i n o f H i s Honour J u s t i c e

J. E . J. Spender .

L A s s o c i a t e

Date: 20 August 1990

S o l i c i t o r s f o r t h e a p p l i c a n t : Mr. Mathews i n person

Counsel f o r t h e respondent : I f s . M. Wilson

S o l i c i t o r s f o r the respondent : A u s t r a l i a n Government S o l i c i t o r

Date o f Hearing:	20 August 1990
Date o f Judgment:	20 August 1990