Versace v Monte

Case [2002] FCA 781

FEDERAL COURT OF AUSTRALIA

Versace v Monte [2002] FCA 781

PRACTICE AND PROCEDURE – Notice of Motion seeking leave to appeal from orders and declarations and reconsideration of order as to costs – whether orders final or interlocutory – order as to taxation of costs forthwith – whether circumstances warrant an order that cost be taxed forthwith – whether order as to taxation of costs should be reconsidered on basis of oversight by counsel – whether declarations and orders made by the court outside the pleadings – whether issues fully litigated – orders based on findings made by the court – whether circumstances warrant fragmentation of appeal process

Computer Edge Pty Ltd v Apple Computer Inc and Anor (1984) 54 ALR 767 cited
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 cited
McKellar v Container Terminal Management Services Ltd  [1999] FCA 1639 cited
Sereika v Cardinal Financial Services Ltd [2001] FCA 687 cited
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 discussed
Briginshaw v Briginshaw (1938) 60 CLR 336 cited

GIANNI VERSACE SpA, SANTO VERSACE and DONATELLA VERSACE v
FRANK MONTE aka FRANCOIS FERDINAND MONTENERI and ARKITUDE HOLDINGS PTY LIMITED (ACN 096 646 016)
N 1184 of 2001

TAMBERLIN J
SYDNEY
19 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1184 OF 2001

BETWEEN:

GIANNI VERSACE SpA
FIRST APPLICANT

SANTO VERSACE
SECOND APPLICANT

DONATELLA VERSACE
THIRD APPLICANT

AND:

FRANK MONTE aka FRANCOIS FERDINAND MONTENERI
FIRST RESPONDENT

ARKITUDE HOLDINGS PTY LIMITED
(ACN 096 646 016)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

19 JUNE 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The Notice of Motion filed by the respondents on 6 May 2002 is dismissed.
    2. The respondents pay the applicants’ costs of the Notice of Motion.


Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1184 OF 2001

BETWEEN:

GIANNI VERSACE SpA
FIRST APPLICANT

SANTO VERSACE
SECOND APPLICANT

DONATELLA VERSACE
THIRD APPLICANT

AND:

FRANK MONTE aka FRANCOIS FERDINAND MONTENERI
FIRST RESPONDENT

ARKITUDE HOLDINGS PTY LIMITED
(ACN 096 646 016)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

19 JUNE 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 29 April 2002, I made declarations in this matter which included the following:

    “1.The respondents made representations that the first respondent (‘Monte’), or one or more of the companies with which he is associated, including the second respondent (‘Monte companies’):

    (i)        was employed or engaged by Gianni Versace;

    (ii)       had a business relationship with Gianni Versace,

    (iii)      had a personal relationship with Gianni Versace;

    (iv)      spoke and otherwise communicated with Gianni Versace,

    and the Court declares that each of those representations was:

    (a)       false and untrue; and

    (b)misleading and/or likely to mislead, and deceptive and/or likely to deceive, contrary to section 52 of the Trade Practices Act 1974.”

  2. I also ordered that:

    “15.The respondents pay the applicants’ costs…

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Details
AGLC
Versace v Monte [2002] FCA 781
Case
[2002] FCA 781
Decision Date

CaseChat Overview and Summary

In the Federal Court, the case of Versace v Monte involved a dispute regarding the amount of damages, which had been separated for determination after resolving issues of liability. The respondents applied for leave to appeal certain interlocutory orders made during the proceedings, including declarations and injunctions, as well as an order for costs. The primary issue was whether the orders, though final in form and operation, were interlocutory in nature due to the pending determination of damages. The court had to decide if the respondents were required to obtain leave to appeal these orders. Additionally, the respondents sought to have the costs order reconsidered, and if unsuccessful, leave to appeal.

The court examined the legal principles surrounding interlocutory judgments and the timing of the taxation of costs. It noted that while the orders were final in form, they were interlocutory because the matter of damages was still pending. The court held that the respondents needed leave to appeal these orders, as they were interlocutory in nature. The court also found no grounds to reopen or vary the costs order, given the importance of resolving the quantum of damages promptly to avoid substantial injustice.

The court further addressed the respondents' contention that the declarations and orders were outside the pleadings and should be set aside, referencing Maloney v Commissioner for Railways. However, the court distinguished the case, stating that the issue of contact between Gianni Versace and Frank Monte was fully and extensively litigated, making the respondents' argument unavailing.

In conclusion, the respondents' application was dismissed, and they were ordered to pay the applicants' costs of the Notice of Motion. This decision clarified the interlocutory nature of certain orders despite their final form and highlighted the necessity of resolving damages promptly to avoid substantial injustice.

Orders

Orders of the court

1.

The Notice of Motion filed by the respondents on 6 May 2002 is dismissed.

2. The respondents pay the applicants’ costs of the Notice of Motion.

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

TAMBERLIN J
The issue as to the amount of damages in these proceedings was separated for determination as a separate issue after resolution of questions as to liability and related matters. This was effected by an order made on 15 August 2001. The declarations made, the injunctions granted, and the orders as to costs up to the close of the initial hearing, were in the nature of final relief in that they are cast in final form and operated immediately. However, notwithstanding their finality as to form and operation it is well settled that the test for determining whether a judgment is final is whether the judgment finally determines all the rights of the parties. The authorities observe that the Court in applying the test must have regard to the legal rather than the practical effect of the judgment so that the question is whether the whole judgment finally determines in a legal sense all the rights of the parties that were at issue in the proceedings: see Computer Edge Pty Ltd v Apple Computer Inc and Anor (1984) 54 ALR 767 at 767-8 and the cases cited and considered by the Full Court in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-107 and 111-116. It follows that in the present case, where the question of damages is yet to be considered, the orders referred to in the respondents’ application are interlocutory in nature notwithstanding their form and operation. As a consequence it is necessary to obtain leave to appeal from those orders at this stage of the proceedings. On 6 May 2002, the respondents made an application to the Court in these terms:“1.That under FCR order 52, rule 10(2), the Respondents have leave to appeal from the following parts of the orders made by Justice Tamberlin on 29 April 2002:(I)The declaration set out in Order No 1, to the extent that it relates to representations that ‘Monte’ or ‘Monte companies’ spoke and otherwise communicated with Gianni Versace [paragraph 1 (iv)];(II)The order set out in Order No 12 to the extent that it relates to representations that ‘Monte’ or ‘Monte companies’ spoke and otherwise communicated with Gianni Versace [paragraph 12 (a) (iv)]; and(III)Order No 16.2.Alternatively, that it be declared that the orders described in paragraph 1 above are not interlocutory and the Respondents do not require leave to appeal therefrom.3.That Order No 16 be stayed until this motion is disposed of.” When the matter came on for hearing, Mr Evatt, for the respondents, sought to have the order as to costs reconsidered and if it were reopened and the decision was against the respondents, he sought leave to appeal in accordance with the Notice of Motion. I now turn to the specific matters raised.TAXATION OF COSTS FORTHWITH Order 62 r 3(3) of the Federal Court Rules (“FCR”) states:“(3)An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.”

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

In view of these circumstances, I am not satisfied that any reason has been shown which would warrant the reopening or variation of order 16 in any way and I therefore refuse the application in relation to that aspect of the mater. I also consider that leave to appeal against order 16 should not be granted having regard to the matters referred to above. I consider that substantial injustice would be suffered by the applicants if they had to wait a further lengthy period for resolution of the quantum of damages.RELATIONSHIP WITH GIANNI VERSACE – DECLARATIONS AND ORDERS Central to the submissions of the respondents in this matter by way of defence was the contention that the respondents had numerous contacts and conversations of a commercial and professional nature which Gianni Versace during the course of which Mr Monte had been furnished information by Gianni Versace. These communications were alleged to have taken the form of numerous meetings in person, discussions by telephone and communications by facsimile. In support of their submission that the declarations and orders the subject of this application were outside the pleadings and should therefore be set aside, the respondents referred to Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, particularly to the remarks of Barwick CJ at 293, where his Honour observed:“Further, in all these essential respects the plaintiff can only be allowed to succeed according to the case which has been alleged as well as proved: the breach of duty must be specifically alleged as well as proved. The generality of assertion accepted in the common law form of pleading ought not to be acceptable. Specific and limiting particulars of the breach of duty should be insisted upon: and the evidence kept within the confines of these particulars. I have observed elsewhere that laxity in not confining a party to the case of which notice by particulars or otherwise has been given to the opponent in sufficient time to allow of that case being fully litigated is an undesirable and unacceptable feature of a trial at law. Injustice to one party or the other is likely to ensue.” (Emphasis added) Remarks to a similar effect in relation to the case being “fully litigated” were made by Jacobs J at 294. That case concerned a claim in negligence against the Commissioner for Railways concerning an injury to a child. The concern of both Barwick CJ and Jacobs J in the remarks referred to were that the question under consideration had not been fully litigated at the hearing. In the present case, by contrast, the question whether there had ever been any contact between Gianni Versace and Frank Monte or his son, was fully and extensively litigated over the course of the hearing. It was the basic and central issue in the case, as the existence or non-existence of a relationship with Gianni Versace bore on the falsity of the statements and the defamatory imputations under consideration. Therefore, the respondents do not gain, in my opinion, any support from the decision in Maloney or in the observations of their Honours in that case for the present submission.