CATCHWORDS
PRACTICE AND PROCEDURE - leave to appeal an interlocutory order - stay of proceedings in another court - duplication of proceedings
Federal Court Act 1976 s 24(1A)
Trade Practices Act 1974 s 52
Fair Trading Act 1987 (NSW) s 72
Jurisdiction of Courts (Cross-Vesting) Act 1987
Rutt v Metropolitan Underwriters (Australasia) Limited [1929] SASR 426 refd
Societe Nationale Industrielle Aerospatiale v Lee Kui Jak & Anor [1987] 1 AC 871 refd
Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 refd
National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1989) 22 FCR 209 refd
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 refd
Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 refd
Stack v Coast Securities (No 9) Pty Ltd (1983-1984) 154 CLR 261 refd
Westpac Banking Corporation & Ors v Eltran Pty Ltd & Ors (1987) 74 ALR 45 refd
Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397 refd
Bourke & Ors v State Bank of New South Wales (1988) 85 ALR 61 refd
National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155 refd
Cadoroll Pty Ltd & Ors v Allegra Corporation Ltd & Ors
No AG18 of 92
Kiefel J Canberra 30 June 1995
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 18 of 1992
BETWEEN:
CADOROLL PTY LIMITED
CADOSHARE PTY LIMITED
JAMES DOUGLAS BLAKE
HAMERLEEN PTY LIMITED
ALFRED NATHAN LESTER
LESTER FIRTH ASSOCIATES PTY LIMITED
JOHN WILLIAM FIRTH
WALTRAME PTY LIMITED
ZANDRA JOY BLAKE
Applicants
AND:
ALLEGRA CORPORATION LIMITED
First Respondent
AND:
ALLEGRA INVESTMENTS LIMITED
Second Respondent
AND:
MAUNTILL PTY LIMITED
Third Respondent
AND:
PEGASUS LEASING LIMITED
Fourth Respondent
AND:
MICHAEL GEORGE SINCLAIR,
MARUTA PEARSON and
MICHAEL MARKO ZIVKOVIC trading as
FARNHAM SINCLAIR & ASSOCIATES
Fifth Respondents
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 29 June 1995
WHERE MADE: Canberra
MINUTES OF ORDERS
THE COURT GRANTS:
1. The fourth respondent leave to appeal from order 3 of the judgment of Neaves J. dated 23 December 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 18 of 1992
BETWEEN:
CADOROLL PTY LIMITED
CADOSHARE PTY LIMITED
JAMES DOUGLAS BLAKE
HAMERLEEN PTY LIMITED
ALFRED NATHAN LESTER
LESTER FIRTH ASSOCIATES PTY LIMITED
JOHN WILLIAM FIRTH
WALTRAME PTY LIMITED
ZANDRA JOY BLAKE
Applicants
AND:
ALLEGRA CORPORATION LIMITED
First Respondent
AND:
ALLEGRA INVESTMENTS LIMITED
Second Respondent
AND:
MAUNTILL PTY LIMITED
Third Respondent
AND:
PEGASUS LEASING LIMITED
Fourth Respondent
AND:
MICHAEL GEORGE SINCLAIR,
MARUTA PEARSON and
MICHAEL MARKO ZIVKOVIC trading as
FARNHAM SINCLAIR & ASSOCIATES
Fifth Respondents
CORAM: Kiefel J.
DATE: 29 June 1995
PLACE: Canberra
REASONS FOR JUDGMENT
The applicant, Pegasus Leasing Limited ("Pegasus"), the fourth respondent in these and two other proceedings numbered AG 27 of 1992 and AG 29 of 1992, seeks leave to appeal from that part of the decision of Neaves J. given on 23 December 1994 wherein his Honour restrained the taking of any further step in proceedings pending in the Supreme Court of South Australia between the same parties until the hearing of the substantive applications in this Court.
His Honour reviewed the history of the proceedings in the actions in some detail and it is unnecessary for me to do so now. Essentially the proceedings mirror each other and differ only in the initiator of them. In the South Australian proceedings commenced on 1 April 1992 Pegasus claimed monies due to it under various instruments. In defence of those proceedings, and by way of counter-claim, as in their statement of claim in this Court, the applicants pleaded contraventions of s.52 of the Trade Practices Act 1974 and s.72 of the Fair Trading Act 1987 (NSW), illegality and breaches of fiduciary duty, and sought declarations that the various agreements are void. Objections to the form and content of the allegations have been heard in this Court. The statement of claim in the proceedings has been the subject of amendment on three occasions. The pleadings in each Court are, I was informed, now in the same form and the same stage has been reached in each of the proceedings.
The motions before Neaves J. were to strike out the further amended statement of claim as an abuse of process and, on behalf of the applicants, to restrain Pegasus from taking further steps in the proceedings in the Supreme Court of South Australia. Another motion, to strike out the amended statement of claim or parts of it as disclosing no cause of action, is yet to be heard. Additionally, application was made during argument that the proceedings be transferred to the Supreme Court of South Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987.
These applications were made in a
background of a series of applications by Pegasus and the applicants concerning
their court of preference. His Honour
noted each application and the order made.
On 9 December 1993 Debelle J. of the Supreme Court of South Australia
dismissed an application to transfer those proceedings to this Court. At that time the issues, at least so far as
they concerned Pegasus' claim, appeared to his Honour to be straightforward and
he was of the view that Pegasus might be delayed if the proceedings were
transferred to this Court where it would be the respondent/cross-claimant. On 17 January 1994 this Court dismissed a
motion by the applicants for an order restraining Pegasus from taking steps in
the South Australian proceedings including the entry of a default judgment on
the ground that the applicants' case was not sufficiently identified. Why that application was in any event brought
in this Court is not clear to me. Closer
in time to the hearing by Neaves J. was the decision of the Full Court of the
Supreme Court of South Australia on 20 September 1994 dismissing an appeal,
although on different grounds, from the decision of a Master of that Court,
declining a stay of proceedings in that Court
pending judgment in this Court. In their
Honours' view a requirement that an application for a stay demonstrate
"vexation, oppression or injustice" could hardly be less stringent
now that the cross-vesting legislation was in force and where the purpose of it
was to enable proceedings to be pursued in another jurisdiction. The fact that the applicants had been
unsuccessful in the previous application for transfer under the cross-vesting
legislation and that they raised the same arguments canvassed on that occasion
also carried some weight with the Court as did the fact that, by a lease
agreement between the parties, it had been agreed that they would submit to the
jurisdiction of that Court. It was
pointed out in submissions that his Honour made no reference to the views
expressed by the Supreme Court, in aid of a submission that the course taken by
his Honour was inappropriate. I was not
however informed whether their Honours' reasons were placed before his Honour.
Further it was not apparent to me whether the Full Court was informed, as his Honour was, that Pegasus was intending to plead a limitation point to the applicants' counter-claim. This was said, in argument before me, to arise by reason of the rules of the Supreme Court of South Australia and was not a defence available to Pegasus in these proceedings.
Neaves J. held, firstly, that no basis had been shown for dismissing the proceedings in this Court as an abuse of process and found it necessary only to advert to the foreshadowed limitation point, although his Honour did not express a final view upon it. No appeal is sought with respect to that decision. Nor can any appeal be brought from the following decision not to transfer the proceedings under the cross-vesting legislation (see s.13). His Honour's reasons for declining that order has relevance however to the injunction later granted. His Honour considered that such an order would require a positive finding that it was more appropriate that the issues be determined by the Supreme Court of South Australia, which he was unable to conclude. His Honour then went on to hold that, it followed, that the parties ought to be restrained with respect to the proceedings in South Australia.
Pegasus does not suggest that his
Honour lacked jurisdiction to grant an injunction but that it would
demonstrate, if leave to appeal were granted, that his Honour failed to apply
any relevant principle in determining to grant an injunction. It submitted that the jurisdiction to
restrain a party from pursuing proceedings in another jurisdiction is only
exercised where it is shown that those proceedings were not instituted bona
fide and either vexatiously or oppressively:
see Rutt v Metropolitan
Underwriters (Australasia) Limited (1929) SASR 426, an approach which
appears to accord with that taken by the Supreme Court of South Australia,
although another case to which I was referred, Societe Nationale Industrielle Aerospatiale v Lee Kui Jak & Anor
[1987] 1 AC 871, 896 expresses the view that
considerations relevant to the grant of an injunction must differ from those
appropriate to a stay of proceedings in the local Court. In any event Pegasus submitted that the
jurisdiction is one based in equity and operates only to prevent unconscientious
exercise of the legal entitlement to continue the other proceedings: Beecham
(Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1, 6; National Mutual Holdings Pty Ltd & Ors v
The Sentry
Corporation & Anor (1989) 22 FCR 209, 232 per Gummow J., which may
include considerations as to vexation and oppression. Pegasus submits that these matters were not
considered by his Honour.
Rather, Pegasus submitted, the approach taken by his Honour was to conclude that this Court was the more appropriate forum. Such an approach, the submission proceeded, is not one required or permitted by the cross-vesting legislation, which poses only the question whether it is more appropriate that the proceedings be determined by the other Court. It was not clear whether Pegasus was contending that his Honour had sought instead to apply rules of private international law. Whilst they involve similar considerations to those relevant to the cross-vesting legislation (see National Mutual v Sentry, 231; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) CLR 197, 252) it has been said that, in principle, it is not appropriate to apply them to the regime established by the cross-vesting legislation: Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711, 727. The point made by Pegasus was that the authorities dealing with forum non conveniens provide no support for a "more appropriate forum" test, such as his Honour applied. Indeed it has been held, in that context, that it is not correct to determine that the local forum is more appropriate and then to grant an injunction restraining the foreign proceedings on that basis alone: Societe Aerospatiale, 895; Beecham v Roque, 6.
Such an approach to his Honour's reasoning may overstate the position. His Honour determined that a transfer of proceedings was not appropriate. A continuation of the proceedings in this Court may have been thought necessary by reason of the foreshadowed limitation point in the other proceedings. But his Honour was obviously concerned to prevent further duplication of proceedings. The course taken is explicable, but that leaves open the question as to what principles ought apply where neither Court exercising the same jurisdiction considers the other more appropriate. If the considerations arising from the jurisdiction to restrain steps in foreign proceedings apply, the question may be whether they affect the integrity of the local Court process: Nationale Mutual v Sentry, 232 and then whether the continuation of the other proceedings which includes a defence of limitation could be said to have that effect.
Mr Jackson QC, for Pegasus, also
submitted that the making of such an order is an officious act where another
Court has decided, on strong grounds, not to stay its own proceedings. I am not sure that this provides a basis for
leave, although it may be a matter which attracts observations by an
appeal court. Certainly in Stack v
Coast Securities (No 9) Pty Ltd (1983-1984) 154 CLR 261, 274 Gibbs
C.J. noted that Fitzgerald J refused to grant such an injunction partly out of
judicial comity. In Westpac Banking Corporation & Ors v Eltran Pty Ltd & Ors
(1987) 74 ALR 45, 52 however Fox and Burchett J.J. were of the view that,
confronted with such a situation, a Court ought to achieve a
resolution of it and, if necessary, grant an injunction. It is to be noted however that that case
predates the cross-vesting legislation and the Court was there concerned with
questions of exclusivity of jurisdiction.
I have not been referred to any case where this question has arisen
since the cross-vesting legislation
came into effect. It may be that it will
seldom arise since, as the legislation predicts, one Court will decide that the
other is more appropriate. Here, as I
have said, each of the local Courts may not have had all of the necessary
information, in particular as to Pegasus' intention to raise the limitation
point.
Usually the considerations taken as relevant to a grant or refusal of leave to appeal under s.24(1A) of the Federal Court Act 1976 are those stated by the Full Court in Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397 after a review of the authorities, namely whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant reconsideration by the Full Court and whether substantial injustice would result if leave were refused, assuming for that purpose that the decision was wrong. It was not however suggested by the Full Court that other matters would not assume importance in some cases. The fact that a question is of general importance may be one: Bourke & Ors v State Bank of New South Wales (1988-89) 85 ALR 61, 72, as is a conclusion that it is necessary that there be a determination of the proper principles affecting a question: National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155, 161. On the other hand, as the applicants submitted, a tight reign is kept on mere points of practice or procedure which would usually be tested by looking to the utility of an application and the effect upon the parties of a refusal of leave.
The issues sought to be raised may be of general importance, although one would think these situations would not often arise. The applicant for leave has however established that the decision raises questions as to the principles to be applied in these circumstances and as to whether application of them would lead to the grant of an injunction. The utility of the order and the effect upon Pegasus has caused me some concern. It has not lost its right to pursue its claims but it has effectively been prevented by the injunction from raising a defence otherwise open.
In these circumstances I consider leave to appeal is warranted.
I certify that this and the preceding 9 pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 30 June 1995
Counsel for the applicants: Mr GJ Richardson SC
Solicitors for the applicants: Minter Ellison Morris Fletcher
Counsel for the first and
second respondents: Mr A D'Amico
Solicitors for the first and
second respondents: Phillips Fox
Counsel for the third and
fifth respondents: Mr IJ Nicol
Solicitors for the third and
fifth respondents: Blake Dawson Waldron
Counsel for the fourth respondent: Mr DF Jackson QC and Mr RC Refshauge
Solicitors for the fourth respondent: Sly & Weigall
Date of Hearing: 27 June 1995
Place of Hearing: Canberra
Date of Judgment: 30 June 1995
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 27 of 1992
BETWEEN:
CADOROLL PTY LIMITED
CADOSHARE PTY LIMITED
WALTRAME PTY LIMITED
LESTER FIRTH ASSOCIATES PTY LIMITED
ALFRED NATHAN LESTER
HAMERLEEN PTY LIMITED
JOHN WILLIAM FIRTH
JAMES DOUGLAS BLAKE
ZANDRA JOY BLAKE
Applicants
AND:
ALLEGRA CORPORATION LIMITED
First Respondent
AND:
ALLEGRA INVESTMENTS LIMITED
Second Respondent
AND:
MAUNTILL PTY LIMITED
Third Respondent
AND:
PEGASUS LEASING LIMITED
Fourth Respondent
AND:
MICHAEL GEORGE SINCLAIR,
MARUTA PEARSON and
MICHAEL MARKO ZIVKOVIC trading as
FARNHAM SINCLAIR & ASSOCIATES
Fifth Respondents
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 30 June 1995
WHERE MADE: Canberra
MINUTES OF ORDERS
THE COURT GRANTS:
1. The fourth respondent leave to appeal from order 3 of the judgment of Neaves J dated 23 December 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 27 of 1992
BETWEEN:
CADOROLL PTY LIMITED
CADOSHARE PTY LIMITED
WALTRAME PTY LIMITED
LESTER FIRTH ASSOCIATES PTY LIMITED
ALFRED NATHAN LESTER
HAMERLEEN PTY LIMITED
JOHN WILLIAM FIRTH
JAMES DOUGLAS BLAKE
ZANDRA JOY BLAKE
Applicants
AND:
ALLEGRA CORPORATION LIMITED
First Respondent
AND:
ALLEGRA INVESTMENTS LIMITED
Second Respondent
AND:
MAUNTILL PTY LIMITED
Third Respondent
AND:
PEGASUS LEASING LIMITED
Fourth Respondent
AND:
MICHAEL GEORGE SINCLAIR,
MARUTA PEARSON and
MICHAEL MARKO ZIVKOVIC trading as
FARNHAM SINCLAIR & ASSOCIATES
Fifth Respondents
CORAM: Kiefel J.
DATE: 29 June 1995
PLACE: Canberra
REASONS FOR JUDGMENT
The applicant, Pegasus Leasing Limited ("Pegasus"), the fourth respondent in these and two other proceedings numbered AG 18 of 1992 and AG 29 of 1992, seeks leave to appeal from that part of the decision of Neaves J. given on 23 December 1994 wherein his Honour restrained the taking of any further step in proceedings pending in the Supreme Court of South Australia between the same parties until the hearing of the substantive applications in this Court.
For the reasons set out in the judgment of AG 18 of 1992 I consider leave to appeal is warranted.
I certify that this and the preceding page are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 30 June 1995
Counsel for the applicants: Mr GJ Richardson SC
Solicitors for the applicants: Minter Ellison Morris Fletcher
Counsel for the first and
second respondents: Mr A D'Amico
Solicitors for the first and
second respondents: Phillips Fox
Counsel for the third and
fifth respondents: Mr IJ Nicol
Solicitors for the third and
fifth respondents: Blake Dawson Waldron
Counsel for the fourth respondent: Mr DF Jackson QC and Mr RC Refshauge
Solicitors for the fourth respondent: Sly & Weigall
Date of Hearing: 27 June 1995
Place of Hearing: Canberra
Date of Judgment: 30 June 1995
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 29 of 1992
BETWEEN:
CADOROLL PTY LIMITED
CALDPOST PTY LIMITED
HAMERLEEN PTY LIMITED
ALFRED NATHAN LESTER
LESTER FIRTH ASSOCIATES PTY LIMITED
MADELAINE MARIE LESTER
Applicants
AND:
ALLEGRA CORPORATION LIMITED
First Respondent
AND:
ALLEGRA INVESTMENTS LIMITED
Second Respondent
AND:
MAUNTILL PTY LIMITED
Third Respondent
AND:
PEGASUS LEASING LIMITED
Fourth Respondent
AND:
MICHAEL GEORGE SINCLAIR,
MARUTA PEARSON and
MICHAEL MARKO ZIVKOVIC trading as
FARNHAM SINCLAIR & ASSOCIATES
Fifth Respondents
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 30 June 1995
WHERE MADE: Canberra
MINUTES OF ORDERS
THE COURT GRANTS:
1. The fourth respondent leave to appeal from order 3 of the judgment of Neaves J dated 23 December 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 29 of 1992
BETWEEN:
CADOROLL PTY LIMITED
CALDPOST PTY LIMITED
HAMERLEEN PTY LIMITED
ALFRED NATHAN LESTER
LESTER FIRTH ASSOCIATES PTY LIMITED
MADELAINE MARIE LESTER
Applicants
AND:
ALLEGRA CORPORATION LIMITED
First Respondent
AND:
ALLEGRA INVESTMENTS LIMITED
Second Respondent
AND:
MAUNTILL PTY LIMITED
Third Respondent
AND:
PEGASUS LEASING LIMITED
Fourth Respondent
AND:
MICHAEL GEORGE SINCLAIR,
MARUTA PEARSON and
MICHAEL MARKO ZIVKOVIC trading as
FARNHAM SINCLAIR & ASSOCIATES
Fifth Respondents
CORAM: Kiefel J.
DATE: 29 June 1995
PLACE: Canberra
REASONS FOR JUDGMENT
The applicant, Pegasus Leasing Limited ("Pegasus"), the fourth respondent in these and two other proceedings numbered AG 18 of 1992 and AG 29 of 1992, seeks leave to appeal from that part of the decision of Neaves J. given on 23 December 1994 wherein his Honour restrained the taking of any further step in proceedings pending in the Supreme Court of South Australia between the same parties until the hearing of the substantive applications in this Court.
For the reasons set out in the judgment of AG 18 of 1992 I consider leave to appeal is warranted.
I certify that this and the preceding page are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 30 June 1995
Counsel for the applicants: Mr GJ Richardson SC
Solicitors for the applicants: Minter Ellison Morris Fletcher
Counsel for the first and
second respondents: Mr A D'Amico
Solicitors for the first and
second respondents: Phillips Fox
Counsel for the third and
fifth respondents: Mr IJ Nicol
Solicitors for the third and
fifth respondents: Blake Dawson Waldron
Counsel for the fourth respondent: Mr DF Jackson QC and Mr RC Refshauge
Solicitors for the fourth respondent: Sly & Weigall
Date of Hearing: 27 June 1995
Place of Hearing: Canberra
Date of Judgment: 30 June 1995
