Zygot Ltd v Hughes - [2009] WASCA 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ST BARBARA LTD -v- HUGHES [2009] WASCA 76

CORAM: OWEN JA
PULLIN JA

HEARD: 13 MARCH 2009

DELIVERED : 13 MARCH 2009

PUBLISHED : 22 APRIL 2009

FILE NO/S: CACV 102 of 2008

BETWEEN: ST BARBARA LTD (ACN 009 165 066)
First Appellant
ZYGOT LTD (ACN 009 115 664)
Second Appellant
AND
BRYAN KARIN HUGHES
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :NEWNES J
Citation  :HUGHES -v- ST BARBARA MINES LTD [No 3] [2008] WASC 220
File No  :CIV 1913 of 2002

Catchwords:

Appeals - Appeal concerning limitation question - Whether appeal should be heard before or after trial

Legislation:

Nil

Result:

Application for leave to appeal and the substantive appeal be deferred for further consideration, if necessary, after trial
Application for leave to crossappeal and the substantive crossappeal be deferred for further consideration, if necessary, after trial

Category: B

Representation:

Counsel:

First Appellant               :     Mr P Durack SC
Second Appellant          :     Mr P Durack SC
Respondent:     Mr T O Coyle

Solicitors:

First Appellant               :     Tottle Partners
Second Appellant          :     Tottle Partners
Respondent:     Lavan Legal

Case(s) referred to in judgment(s):

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

JUDGMENT OF THE COURT: The applications for leave to appeal and cross‑appeal have been listed in order to decide whether, if leave is granted, the applications in the appeals should be heard before or after the trial of the action between the parties.
The appellant's proposed appeal in this case is against the grant of leave by Newnes J, as his Honour then was, to the appellant permitting the amendment of its pleadings. The respondent's proposed cross‑appeal is against Newnes J's decision to reserve to the trial judge the date from which the amendments take effect.
In short, the appellant contends that the amendments introduced a cause of action which is statute barred. The appellants want the applications for leave and the appeal listed in May, or the application for leave at least listed and determined before the trial of the action which is due to commence on 9 June 2009.
The Court is of the opinion that the applications for leave and the appeal and cross-appeal should not be heard until after the trial for these reasons:
(a)If the respondent's claim based on the amendments introduced as a result of the leave granted by Newnes J to dismiss at trial then the appeal and cross-appeal will become moot.
(b)The appellants contend that the cause of action introduced by the amendments is statute barred as Newnes J reserved to the trial Judge the date on which amendments are to take effect. The appellants can still plead and advance a limitation defence as they have foreshadowed. It is undesirable that a limitation question should be decided in advance of the hearing of the action except in the clearest of cases, see Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514.
(c)If the respondent gains judgment after trial based on the amendments to the pleadings allowed, as a result of the grant of leave by Newnes J, then his Honour's interlocutory orders will be orders which have effected the final result. The Court, then, can at that stage entertain the applications for the grant of leave and the appeal against Newnes J's interlocutory orders, see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6]. If the trial Judge determines that the amendments should date from a time which gives the appellants a successful limitation defence then the respondent will be able to pursue its application for leave to appeal against Newnes J's order and the trial judge's decision on that point.
(d)The appellants concede that the length of the trial will not be materially increased by reason of the cause of action introduced by the amendment.
(e)The fact that a decision will assist the development of law in Western Australia is not sufficient reason to grant leave at this stage.
It follows that the appellant's application for leave to appeal and the substantive appeal and the respondent's application for leave to cross-appeal and the substantive cross-appeal will be deferred for further consideration if necessary after the trial.

Details

AGLC: Zygot Ltd v Hughes [2009] WASCA 76
Case: [2009] WASCA 76
Decision Date: 13 MARCH 2009

CaseChat Overview and Summary

In the matter of Zygot Ltd v Hughes, the parties were engaged in a dispute that involved the amendment of pleadings in an action. The case was before the court to determine the appropriate timing for hearing applications for leave to appeal and cross-appeal, specifically whether these should be heard before or after the trial of the action. Zygot Ltd, the appellant, sought to appeal the grant of leave by Newnes J permitting the amendment of its pleadings. The respondent, Hughes, filed a cross-appeal against Newnes J's decision to reserve to the trial judge the date from which the amendments would take effect. The central issue was whether the amendments introduced a cause of action that was statute-barred.

The court examined the implications of deciding the appeal and cross-appeal before the trial. It was noted that if Hughes' claim based on the amendments were dismissed at trial, the appeal and cross-appeal would become moot. Furthermore, the court highlighted that it is generally undesirable to decide limitation questions in advance of the hearing of the action unless the case is exceptionally clear. The court also considered that if Hughes were to gain judgment at trial based on the amendments, the interlocutory orders would have resulted in the final outcome, making it appropriate to entertain the applications for leave and the appeal against Newnes J's interlocutory orders post-trial. Additionally, the appellants had the opportunity to plead and advance a limitation defence. The length of the trial was not expected to be significantly increased by the cause of action introduced by the amendment, and the potential for developing law in Western Australia was not deemed sufficient reason to grant leave at that stage.

Based on these considerations, the court concluded that the applications for leave to appeal and the substantive appeal and cross-appeal should be deferred until after the trial. This decision was made to avoid rendering the appeals moot and to ensure that the limitation defence could be properly considered in the context of the trial's outcome. The court noted that if the trial judge determined that the amendments should date from a time that provided a successful limitation defence, Hughes would then be able to pursue an application for leave to appeal against Newnes J's order and the trial judge's decision on that point. Consequently, the applications for leave to appeal and the substantive appeal and cross-appeal were deferred for further consideration after the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The applications for leave to appeal and cross‑appeal have been listed in order to decide whether, if leave is granted, the applications in the appeals should be heard before or after the trial of the action between the parties. The appellant's proposed appeal in this case is against the grant of leave by Newnes J, as his Honour then was, to the appellant permitting the amendment of its pleadings. The respondent's proposed cross‑appeal is against Newnes J's decision to reserve to the trial judge the date from which the amendments take effect. In short, the appellant contends that the amendments introduced a cause of action which is statute barred. The appellants want the applications for leave and the appeal listed in May, or the application for leave at least listed and determined before the trial of the action which is due to commence on 9 June 2009. The Court is of the opinion that the applications for leave and the appeal and cross-appeal should not be heard until after the trial for these reasons: (a)If the respondent's claim based on the amendments introduced as a result of the leave granted by Newnes J to dismiss at trial then the appeal and cross-appeal will become moot. (b)The appellants contend that the cause of action introduced by the amendments is statute barred as Newnes J reserved to the trial Judge the date on which amendments are to take effect. The appellants can still plead and advance a limitation defence as they have foreshadowed. It is undesirable that a limitation question should be decided in advance of the hearing of the action except in the clearest of cases, see Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514. (c)If the respondent gains judgment after trial based on the amendments to the pleadings allowed, as a result of the grant of leave by Newnes J, then his Honour's interlocutory orders will be orders which have effected the final result. The Court, then, can at that stage entertain the applications for the grant of leave and the appeal against Newnes J's interlocutory orders, see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6]. If the trial Judge determines that the amendments should date from a time which gives the appellants a successful limitation defence then the respondent will be able to pursue its application for leave to appeal against Newnes J's order and the trial judge's decision on that point. (d)The appellants concede that the length of the trial will not be materially increased by reason of the cause of action introduced by the amendment.(e)The fact that a decision will assist the development of law in Western Australia is not sufficient reason to grant leave at this stage. It follows that the appellant's application for leave to appeal and the substantive appeal and the respondent's application for leave to cross-appeal and the substantive cross-appeal will be deferred for further consideration if necessary after the trial.

Ratio Decidendi

Legal Principle Established

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