Yates I.F. v City Loan and Credit Corp Pty Ltd

[1988] FCA 203

3UDGFX?-!T No. 203'-

LIMITED CIRCULATION

CATCHWORDS

PRACTICE AND PROCEDURE - Motion for extens ion of stay of

proceedings and for leave to appeal - whether orders subject

of app l i ca t ion for leave to appeal were f i n a l o r d e r s .

Federal Cour t of Austral ia Act 1976: S. 24(1A)

SCAREL PTY. LIMITED v. CITY LOAN & CREDIT CORPORATION PTY. LIMITED

G513 of 1986

IAN FRANCIS YATES V . CITY LOAN & CREDIT CORPORATION PTY. LIMITED

G277 of 1987

LOCKHART, SHEPPARD and MORLING JJ.

IAN FRANCIS YATES V. CITY LOAN & CREDIT CORPORATION PTY. LIMITED

B371 of 1987

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LIMITED CIRCULATION

JN THE FEOERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY 1 No. G513 of 1986

1

G- DIVISION )

BETHEEN:  SCAREL PTY. LIMITED

Applicant

m:	CITY LOAN & CREDIT CORPORATION PTY.
LIMITED

Respondent

No. G277 of 1987

IAN FRANCIS YATES

Applicant

CITY LOAN & CREDIT CORPORATION PTY.

LIMITED

Respondent

No. B371 of 1987

RE: IAN FRANCIS YATES

Debtor

AND:	CITY LOAN & CREDIT CORPORATION	PTY.
LIMITED

Creditor

COURT:	Lockhart, Sheppard and Morling JJ.
DATE:	17 February 1988
PLACE :	Sydney

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The order made by this Court on 11 December 1987 dismissing

I proceeding G513 of 1986 and the order as to costs made on

that date be stayed until the determination of the appeal

from the judgment of Gummow J. of 10 February 1988 ln proceedings G513 of 1986, G277 of 1987 and B371 of 1987 or until further order of the Court;

2.	The hearing of the appeal from the ~udgment	of Gummow J. of
10 February 1988 be expedited; and
3.	Costs of the motion shall	be costs in the appeal.

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

L

2.

REASONS FOR JUDGMENT

n5xmZ

The Court has before it a motion by Ian Francis Yates in

proceeding G513 of 1986 to	which the parties are Scarel	Pty. Limited
("Scarcl") as applicant and	City Loan & Credit Corporation	Pty.

Limited ("City Lorn") as respondent. Mr. Yates is not a party to that proceeding. Mr. Yates seeks two orders in his motion: first, that a stay of proceedings granted by a single Judge of this Court (Gummow

J . ) on 11 December 1987 be extended until the determination of the

substantive motion for leave to appeal which is before us today.	The
second order sought	by Mr. Yates is an order that leave be granted to

appeal from the judgment of Gummow J. given on 10 February 1988 In

matters numbers G513 of 1986, G277 of 1987 and B371 of 1987. In the

two last-mentioned matters the parties are Mr. Yates and City Loan.

Gummow J. had before him on 10 February 1988 motions seeking

an order that the orders of the Court of 11 December 1987 be set aside

and that in lieu thereof there be substituted orders consolidating the

three proceedings to which reference hs been made; an order granting

leave to Hr. Yates to continue the consolidated proceedings in the

name of the company Scarel and an order granting him leave to be

substituted as applicant in proceeding G513 of 1986.	Gummow	J. ' S
previoum order of	11 December 1987 had	been that proceeding G513 of

1986 be dismissed, the applicant Scarel to pay the costs of the

respondent City Loan in the proceedings as agreed or as taxed. That order warn made by consent. Gummow 3. also ordered on that occasion

that the order then made not be entered before 4.00 p.m. on 17

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3.

December 1987.	The motions which were before Gummow	J. were filed
prior to the date on which the	order for dismissal made	on 11 December

).

could be entered and no steps have since been taken to enter that

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order.

On 10 February Gummow J. considered the various motions

~	before him ahd ordered that the application by Mr. Yates for leave to continue proceeding G513 of 1986 on behalf of and in the name of Scare1 be dismissed. His Honour observed that it followed that the
balance of the application6 a160 failed. In the result, his Honour
said that the previous order of the Court for dismissal of proceeding
G513 of 1986 made on 11 December should proceed to entry. His Honour
also made orders as to costs.

At the outset of the hearing of the motion before us for

leave to appeal and for a stay, counsel for Mr. Yates, although

seeking leaw to appeal from Gummow J.'s judgment, submitted that

there is no necessity for that leave to be granted because the orders

of Gummow J. are final orders.	The solicitor appearing for City Loan
submitted to the contrary.

With the consent of the parties, the Court first heard

argument as to whether or not the orders the subject of the

application for leave to appeal were final orders. Sub-section 2 4 ( 1 A )

of the Federal Court of Australia Act 1976 provides that an appeal

shall not be brought from a judgment that is an interlocutory judgment

unless the Court or a Judge gives leave to appeal. The questlon

whether a judgment is final	or interlocutory 1s one which has been the
subject of considerable judicial comment and has been productive	of
difficulty.

The test to be applied to determine whether a ~udgment 1s

final or not is whether it finally determines the rights of the parties. That teat requires the Court to have regard to the legal

rather than the practical effect of the judgment. This was the

essence of the decisions of the High Court in Licul v. Cornev (1976) 50 A.L.J.R. 439; Port of Melbourne Authoritv V. Anshun Ptv. Limited (1981) 147 C.L.R. 35 and v. Finance Corporation of Australia

Limited CNo . 13 (1981) 147 C.L.R. 246.

Mr. Yates is not a party to proceeding G513 of 1986, but he has sought an order of the Court that he be given leave to continue that proceeding on behalf of Scarel. As Gummow J. pointed out in his reasons for judgment of 10 February, the result of the refusal of leave 1s that the order of 11 December 1987 dismissing proceeding G513

-	can proceed to entry. In the result, the legal effect of the Court's order of 10 February is both to deny leave to Mr. Yates to continue
proceeding G513 and to decline to set aside the consent ludgment of 11
December dismissing proceeding G513. In those circumstances It is the
opinion of the Court that the judgment of Gummow J. finally determined

the rights of the parties, when the effect of the judgment is

characterised according to its legal rather than its practical effect. It follows that the judgment of Gummow J. was final in nature. Leave to appeal is therefore not necessary.

There remains the other portion of the motlon before the

Court, namely, the motion to stay the entry of the order made by

consent on 11 December 1987. Hr. Yates Seeks an order that the stay

operate until the determination of the appeal from Gummow J.'s

judgment of 10 February 1988. The Court is	of the opinion that
nuificient has been said to show that there is an arguable case to	be
rained in support of the appeal and accordingly thinks that the	stay
should be granted.	The Court expresses no views, of course, on the

ultimate nuccenn or otherwise of the arguments which have been

foreshadowed before us as being the matters that will	be raised in the
appeal.

The order of the Court is that the order made by this Court

on 11 December 1987 dismissing proceeding G513 of 1986 and the

consequential order for costs be stayed until the determination of the appeal from the judgment of Gummow J. of 10 February 1988 or untll further order of the Court. The costs of the motion today should be

costs in the appeal. The Court also orders that the hearing of the

appeal from the judgment of Gummow J. of 10 February 1988 be

expedited.

I certify that this and the preceding

four ( 4 ) pages are a true copy of the

reason6	for judgment herein of the
Court.

bssociate	kXi3bdd.
W:	17 February 1988

Counsel	for	the	applicant:	Mr. J.P. Hamilton	with
Hr. R. K. Eassie

Solicitors for the applicant: Snelgrove, Mucsnik & O'Brien

Solicitors for the respondent: Hr. R. Anderson of Lane 61 Lane

Dnte of Hearing3	17 February 1988
Date of Judgment:	17 February 1988