CATCHWORDS
PRACTICE AND PROCEDURE - respondent's application to strike out appeal - whether appeal filed within time but served out of time is incompetent within the meaning of order 52, rule 18 of the Federal Court Rules - whether judgment appealed against interlocutory or final - Court has regard to the legal rather than the practical effect of the judgment - service out of time does not render appeal incompetent.
PRACTICE AND PROCEDURE - application to stay orders pending appeal - need to adduce evidence on appeal - whether evidence is fresh evidence - relevance to stay application of the need to adduce evidence on appeal.
Federal Court of Australia Act, 1974 (Cth)
Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246
Licul v Corney (1976) 50 ALJR 439
Southern Cross Exploration NL v Fire and All Risks Insurance Company Limited [No 2] (1990) 21 NSWLR 200
Moore v Tooheys Limited (1981) 56 FLR 345
Sanders v Sanders (1881) 19 Ch 373
Raybos Australia Pty Limited v Tectran Corporation Pty Limited (1986) 6 NSWLR 674
JEFFREY ROY CHARLES MORTON v MARK FRANKS & ORS
No. NG850 OF 1994
Beazley J
20 February 1995
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG850 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: JEFFREY ROY CHARLES MORTON
Appellant
AND: MARK FRANKS First Respondent
BARBARA FRANKS
Second Respondent
VIDEO RESOURCE GROUP INCORPORATED
Third Respondent
BUDLYRE PTY LIMITED
(ACN 053 808 996)
Fourth Respondent
BENELAN PTY LIMITED
(ACN 053 713 018)
Fifth Respondent
TRUEFEAT PTY LIMITED
(ACN 053 664 010)
Sixth Respondent
CORAM: BEAZLEY J
PLACE: SYDNEY
DATE: 20 February 1995
MINUTE OF ORDERS
The Court orders that:
1. the appellant's notice of motion filed 2 February 1995 be dismissed.
2. the respondents' notice of motion filed 10 February 1995 be dismissed.
2.
3. each party pay his and its own costs of each 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 )
) No. NG850 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: JEFFREY ROY CHARLES MORTON
Appellant
AND: MARK FRANKS First Respondent
BARBARA FRANKS
Second Respondent
VIDEO RESOURCE GROUP INCORPORATED
Third Respondent
BUDLYRE PTY LIMITED
(ACN 053 808 996)
Fourth Respondent
BENELAN PTY LIMITED
(ACN 053 713 018)
Fifth Respondent
TRUEFEAT PTY LIMITED
(ACN 053 664 010)
Sixth Respondent
CORAM: BEAZLEY J
PLACE: SYDNEY
DATE: 20 February 1995
EX TEMPORE REASONS FOR JUDGMENT
BEAZLEY J: There are before me today two notices of motion. The first was filed on 2 February 1995 by the appellant (Mr Morton) seeking orders that the "judgments of Justice Hill...on 15 August 1994 and 24 October 1994 be stayed until such a time as any appeals from the judgments are completed". The second is a notice of motion filed in court on 10 February 1995 by the first, second, third, fourth, fifth and sixth respondents (the respondents), seeking an order that the appeal against the "judgment" of Hill J of 15 August 1994 be struck out.
It is convenient first to deal with the respondent's notice of motion filed in court on 10 February 1995. Order 52 of the Federal Court Rules makes provision for the filing and service of appeals or applications for leave to appeal within a prescribed time, depending upon whether what is being appealed from is an interlocutory or final judgment. There is an issue in this matter as to whether the judgment of Hill J of 15 August 1994 is an interlocutory or final judgment, counsel for the respondents contending that it is final and counsel for Mr Morton contending that his Honour's judgment of that day was interlocutory only.
The test for what is interlocutory and what is final is not necessarily an easy one to apply but has now been authoritatively formulated in Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246. In the judgment of Gibbs CJ, his Honour stated that test as follows:
"[t]he question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the right of the parties. See Licul v Corney (1976) 50 ALJR 439 at 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423 at 440 ..."
See also in Southern Cross Exploration NL v Fire and All Risks Insurance Company Limited [No 2] (1990) 21 NSWLR 200 at 206 ff and 216 ff where the authorities which had considered the test in Licul v Corney as applied in Carr's case were reviewed.
The test requires the court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present.
The judgment of Hill J on 10 August 1994 identified the matter before him in these terms:
"[b]efore the court are two motions brought by the applicants for orders, first for summary judgment against the first respondent, Mr Morton, in respect of an amount of US$25,000 and second for an order that receivership of Mr Vouris in respect of named companies]... be terminated..."
The
respondent's notice of motion relates to the first notice of motion before Hill
J. Counsel for the respondent submitted
that the effect of his Honour's orders was final. However, I cannot go beyond the language of
his Honour in deciding what matter was before him. In my opinion, notwithstanding that the
practical effect of his Honour's orders was to make a final order against Mr
Morton in that he was required to pay
to the respondent company, Budlyre Proprietary Limited, the sum of US$25,000,
his Honour was, in reality, dealing with an interlocutory application, that is,
a notice of motion for summary judgment.
Therefore, the relevant provision in respect of an appeal is order 52
rule 10. It provides:
"(1) An application for leave to appeal from an interlocutory judgment of the court may be made orally to the judge who has pronounced the judgment at the time of its pronouncement.
(2) (a) Where an application has not been made in accordance with subrule (1), an application may be made by motion on notice to a single Judge or to a Full Court, and the provisions of Order 19 shall apply.
(b) The notice shall be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the court or a judge may allow.
..."
Counsel for the respondent submitted that in any event, Mr Morton's appeal, which was filed on 14 November 1994, was out of time, not having been filed or served within the seven days prescribed by rule 10. It was submitted therefore that the appeal in respect of Hill J's judgment of 10 August 1994 was incompetent. The difficulty with this submission, however, is that whilst a party who wishes to appeal from an interlocutory judgment must do so within the time prescribed by order 52 rule 10, the party is not so required to appeal but can await the final determination of the matter.
In this case the final determination of the whole matter before the court did not occur until 24 October. The relevant provision which relate to an appeal from a final judgment is order 52 rule 15 which provides:
"[t]he notice of appeal shall be filed and served within 21 days after the date when judgment appealed from was pronounced".
In this case the 21 days expired on 14 November 1994. Thus, whilst Mr Morton filed his appeal within time, he did not serve it within time, as there is evidence before the Court that it was not served until 8 December 1994. The question which arises, therefore, is whether an appeal which is filed within time but not served within time is thereby incompetent within the meaning of order 52, rule 18, which provides that:
"A respondent may move on notice at any time for an order dismissing an appeal as incompetent".
This matter was dealt with by the Full Court of the Federal Court in Moore v Tooheys Limited (1981) 56 FLR 345 where the Court said at 348:
"The appeal was instituted when the notice of appeal was duly filed within time and the failure to serve within time was a failure to comply with the rules and did not result in the incompetency of the appeal".
Accordingly, the fact that the appeal was not served until after the 21 days referred to in order 52, rule 15 does not mean that the appeal was incompetent, but merely that there was an irregularity in respect of service.
Some material was proffered to me from the bar table as to why the notice of appeal had not been served within the 21 day period. However, because I gave an indication that I considered that the lateness of service did not affect competency I did not insist that such material be tendered. I consider that a delay of three weeks is such which ought to be waived by the court and accordingly, pursuant to order 1, rule 8, I dispense with compliance with that part of order 52, rule 15, which required service of the notice of appeal within 21 days and declare that the service on 8 December 1994 is adequate service for the purposes of order 52.
It follows, from what I have said, that the appropriate order that I make on the respondent's notice of motion filed in court on 10 February is that it be dismissed. That therefore means that I should deal with the notice of motion for a stay of the orders of Hill J. I should state at the outset that Mr Morton's application for a stay recognises that he would need to adduce evidence on appeal.
Mr Morton's notice of motion is supported by two affidavits. In his first affidavit, sworn 20 January 1995, he gave evidence that the company, Budlyre Pty Limited, to which he was ordered to pay the $25,000, is subject to a deed of arrangement and that a report of the administrator indicates that that company is insolvent and will only be able to pay its unsecured creditors 8 cents in the dollar.
The second affidavit sworn 20 February 1995 provides evidence of a transaction, the effect of which it is said, had it been placed before the trial judge - and I quote from paragraph 10 of the affidavit - would have demonstrated that Mr Morton was:
"...the true beneficial owner of Budlyre."
The material referred to in the affidavit which, according to Mr Morton would lead to that conclusion, relates to a transaction whereby an amount of approximately $100,000 was paid into Budlyre's account by or at the direction of a company known as Mack Studios Pty Limited. Mr Morton says that he has a 50 per cent interest in Mack Studios. He also stated in his oral evidence that of all moneys paid into Budlyre's account, all but $6000 came from Mack Studios. His evidence was that the total of moneys paid in by the latter company was about $300,000.
I should state that although in paragraph 10 of his affidavit Mr Morton asserted that the evidence of the moneys paid in by Mack Studios would demonstrate that he was the true beneficial owner of Budlyre, he subsequently said that he was referring to the beneficial ownership of one of the two shares in that company. He also said on another occasion in evidence that he owned half of the money in Budlyre. It seems to me, however, that the most the evidence before me today establishes is that a company, Mack Studios Pty Limited, which Mr Morton says is beneficially owned by himself as to one half, may be a creditor of Budlyre. The evidence does not establish either that Mr Morton is the beneficial owner of one half of the shares in that company or that he, in some way, owns half the money in that company. More particularly, however, it does not establish that the moneys in Budlyre Pty Limited were not truly Budlyre's moneys.
It must be kept in the forefront of one's mind in dealing with this application, of course, that it is an application for the stay of the primary judge's order. It is not an application for the adducing of fresh evidence on an appeal. However, that matter does seem to me to be relevant to my determination as to whether or not I should grant a stay. Section 27 of the Federal Court of Australia Act, 1976 (Cth) provides that:
"In an appeal, the Court shall have regard to the evidence given in proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:
(a) on affidavit; or
(b) by video link, telephone or other appropriate means in accordance with another provision of this Act and another law of the Commonwealth; or
(c) by oral examination before the Court or a Judge; or
(d) otherwise in accordance with section 46."
Section 28 then provides for the form of judgment on an appeal. Amongst other orders, the Court may grant a new trial or alternatively set aside the judgment appealed from in whole or in part and remit the proceeding to the court from which the appeal was brought for further hearing and examination.
Counsel for Mr Morton submitted that the test for satisfaction of section 27 insofar as it relates to the receipt of further evidence, is that there must be a high degree of probability that the new evidence sought to be adduced would result in a different verdict from that given by the trial judge. He conceded that on the state of the evidence before me on the application for a stay, Mr Morton could not meet that test. However he submitted that as a matter of discretion I should stay his Honour's orders so as to allow the matter to be fully tested in the Full Court, the callover for the appeal being listed for 28 March 1995. He submitted the court has a wide discretion and relied upon the decision of Sanders v Sanders (1881) 19 Ch 373 where the Master of the Rolls said at page 380:
"[t]he appellant has applied for leave to adduce fresh evidence but I am of opinion [sic] that it ought not be granted. The application is for an indulgence. He might have adduced the evidence in the Court below. That he might have shaped his case better in the court below is no ground for leave to adduce fresh evidence before the Court of Appeal. It has often been said, nothing is more dangerous than to allow fresh oral evidence to be introduced after a case has been discussed in court. The exact point on which evidence is wanted having thus been discovered, to allow fresh evidence to be introduced at that stage would offer a strong temptation to perjury. Moreover, speaking for myself, I think that when an application is made for an indulgence, the moral elements of the case ought to be taken into consideration. I am more inclined to grant it when what appears to be a substantially good and honest case is in danger of being defeated on technical grounds, than in favour of an attempt to defeat a good case on technical grounds...."
There has been a concession in Mr Morton's case that he cannot satisfy one of the essential elements required before leave will be granted to adduce fresh evidence, that is, that there is a high degree of probability that the new evidence would result in a different verdict from that given by the trial judge. Having failed that test, the only other material before me is that Mr Morton was at the time of the trial labouring under severe financial restraints which limited his ability to properly instruct his lawyers. Saying that, I have not overlooked that there was also evidence that on 5 August 1994, at a time very proximate to the hearing, Mr Morton was subject to a raid by the Federal Police and also felt himself under a great deal of pressure. However, there is no evidence before me that the raid by the Federal Police prevented him from adducing the evidence which he has put forward in his affidavit before me today nor is there any evidence that the pressure under which he felt was of an exceptional or unusual kind, falling outside the stresses of litigation referred to by the New South Wales Court of Appeal in Raybos Australia Pty Limited v Tectran Corporation Pty Limited (1986) 6 NSWLR 674 where the learned President at 678 stated:
"[a]ll litigation involves stress - for judges no less than for legal practitioners, parties and witnesses. A person appearing on his own behalf suffers particular stress. Courts endeavour to assist such parties as far as justice allows.
...
[but] there is a point where the rights of their opponents must be guarded. The ordinary stresses faced by a litigant in person, operating in an unfamiliar environment, will not normally require adjournment of proceedings until such stress passes. Otherwise litigation involving parties who are, or choose to be, unrepresented might never be brought to finality."
In this case Mr Morton was not a litigant in person at the time of the hearing before Hill J. Accordingly, notwithstanding that he has given evidence that he was under a deal of pressure at that time, there is no evidence before me that it was of an undue kind such that I should, at this point of time, grant the stay of the orders made by Hill J pending the appeal. Accordingly, I dismiss Mr Morton's notice of motion which was filed on 2 February 1995.
I certify that this and the preceding 11 pages are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Beazley.
Associate:
Dated: 24 March 1995
APPEARANCES
Counsel for the Applicant: Mr Kennedy (appearing pro bono by arrangements through the NSW Bar Association)
Counsel for the Respondent: Mr Cotman
Solicitors for the Respondent: Messrs Hunt & Hunt
Date of hearing: 20 February 1995
Date of judgment: 20 February 1995
