CATCHWORDS
Appeal - appeal from conditional orders of dismissal of proceedings - whether leave to appeal required - legal effect of orders - whether orders were interlocutory or final.
Federal Court of Australia Act 1976, s 24(1A)
Federal Court Rules, O 3, r 3
FAI General Insurance Company Limited v Southern Cross Exploration N.L. (1987-1988) 165 CLR 268 - cons.
MICHAEL VINCENT BOURKE & ORS v STATE BANK OF NEW SOUTH WALES LTD.
No. NG 516 of 1994
No. NG 471 of 1994
Beaumont, Einfeld and Beazley JJ.
13 March 1995
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 516 of 1994
GENERAL DIVISION ) No. NG 471 of 1994
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
OF AUSTRALIA
BETWEEN: MICHAEL VINCENT BOURKE
First appellant
L & M HOLDINGS PTY LTD
Second appellant
LRA RESTAURANTS PTY LTD
Third appellant
HUNTER DEVELOPMENT CO PTY LTD
Fourth appellant
EMAS PTY LTD
Fifth appellant
BONOTO PTY LTD
Sixth appellant
KRYS PROPERTIES PTY LTD
Seventh appellant
AVITO PTY LTD
Eighth appellant
TERENCE MARCELLIN BOURKE
Ninth appellant
AND: STATE BANK OF NEW SOUTH WALES LTD
Respondent
CORAM: BEAUMONT, EINFELD AND BEAZLEY JJ.
DATE : 13 March 1995
MINUTES OF ORDER
2.
THE COURT ORDERS THAT:
1. The separate question be answered as follows:-
Question:
Is leave required to appeal from the orders made by Wilcox J. on 15 June 1994 and from the orders made by Davies J. on 7 July 1994?
Answer:
In each case, "Yes".
2. There be no order made for the costs of the separate question.
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 ) No. NG 516 of 1994
GENERAL DIVISION ) No. NG 471 of 1994
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
OF AUSTRALIA
BETWEEN: MICHAEL VINCENT BOURKE
First appellant
L & M HOLDINGS PTY LTD
Second appellant
LRA RESTAURANTS PTY LTD
Third appellant
HUNTER DEVELOPMENT CO PTY LTD
Fourth appellant
EMAS PTY LTD
Fifth appellant
BONOTO PTY LTD
Sixth appellant
KRYS PROPERTIES PTY LTD
Seventh appellant
AVITO PTY LTD
Eighth appellant
TERENCE MARCELLIN BOURKE
Ninth appellant
AND: STATE BANK OF NEW SOUTH WALES LTD
Respondent
CORAM: BEAUMONT, EINFELD AND BEAZLEY JJ.
DATE : 13 MARCH 1995
REASONS FOR JUDGMENT
(On question whether leave to appeal necessary)
THE COURT:
INTRODUCTION
On 24 February 1995, at the commencement of the hearing of the appeal, the Court ordered by consent that there be determined separately the question whether leave to appeal was required in these matters.
The relevant history of the proceedings commenced on 15 June 1994 when Wilcox J. made the following orders:
"1. The proceedings stand dismissed, unless not later than Friday, 1 July 1994, the Applicant companies:
(a) File and serve an Amended Statement of Claim;
(b) File and serve all affidavits on which they propose to rely at the trial in respect of issues of liability;
(c) Provide security in the sum of $40,000.00 either by cash deposit with the Registrar or by payment into a bank account under the joint control of the solicitors for the Applicant companies and the Respondent, or in such other form as the solicitor for the Respondent may agree in writing.
2. Order that the proceedings insofar as they are brought in the name of Michael Vincent Bourke and Terrence Bourke, be dismissed forthwith.
3. Order the Applicant companies to pay the costs of the Notice of Motion filed on 15 June 1992.
4. Stand over to the Directions List on 22 July 1994."
On 1 July 1994, the appellants filed a notice of motion to vary those orders in certain respects. On 7 July
1994 Davies J. refused to make the orders sought on the motion. On the same day, the appellants filed a notice of appeal against the orders made by Wilcox J. This notice was replaced on 22 August 1994 by an amended notice of appeal which challenged the orders made by both Wilcox J. and Davies J.
On behalf of the respondent, it is submitted that both the orders made were interlocutory, rather than final, with the consequence that, in accordance with the provisions of s.24(1A) of the Federal Court of Australia Act 1976, leave to appeal is required.
CONCLUSION ON THE SEPARATE QUESTION
It is well established that, in determining whether a judgment is final, as distinct from interlocutory, the Court must have regard to the legal, rather than the practical, effect of the judgment (see Carr v Finance Corporation of Australia (No. 1) (1981) 147 CLR 246 at 248; Computer Edge Pty Limited v Apple Computer Inc. (1984) 54 ALR 767).
It is then necessary to examine first the legal effect of the conditional orders of dismissal made by Wilcox J.
The effect of conditional orders of dismissal and the lack of any inherent power in the Court to revive the proceedings were discussed in Goodwin v Southern Tablelands Finance Co. Pty. Ltd. (1968) 42 ALJR 309, Bailey v Marinoff (1971) 125 CLR 529 and Gamser v The Nominal Defendant (1977) 136 CLR 145. But more recent authority, notably FAI General Insurance Company Limited v Southern Cross Exploration N.L. (1987-1988) 165 CLR 268, has drawn attention to the statutory power of a Court to extend time, even in the present context.
By O.3 r.3, this Court, or a judge, may extend time even after the time expires and even if the application for extension is made after that expiration.
In FAI, above, Gaudron J. said (at 289-290):
"Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as 'dead', that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me
no relevant distinction between a proceeding in which a conditional order for dismissal has been
entered and a proceeding in which an order has been made but not entered, notwithstanding the decision in Goodwin and Bailey. However, it is neither necessary nor appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those cases."
We respectfully agree.
It follows, in our view, that the orders made by Wilcox J. were not in law finally dispositive of the litigation.
Turning next to the effect of the order made by Davies J., it is clear that if the orders made by Wilcox J. were final, then Davies J. had no power to order that they be varied or discharged. That could only be done in an appeal to the Full Court. If, as has been held above, the orders made by Wilcox J. were merely interlocutory, then it would lie with the power of another single judge to entertain an application to review them. Thus, Davies J. was also engaged upon an interlocutory application so that the orders made by his Honour were interlocutory as well.
In the result, in each instance, leave to appeal is required.
We would answer the separate question in the affirmative. Since the respondent did not file an objection to competency, we would make no order with respect to the costs of the separate question.
I certify that this and the preceding four (4)) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate
Dated: 13 March 1995
Mr. M.V. Bourke appeared in
person for first to ninth
appellants
Counsel and Solicitors Mr. D. Russell instructed by
for Respondent: P.W. Kearns
Date of hearing: 24 February 1995
Date Judgment delivered: 13 March 1995
