FEDERAL COURT OF AUSTRALIA

Hamod v State of New South Wales [2001] FCA 1766

Federal Court Rules O 52 rr 10(2)(a), 10(2)(b)

Deighton v Telstra Corporation Limited (Lee, Heerey and R D Nicholson JJ, 17 October 1997, unreported) followed

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed

Auspine Limited v H S Lawrence & Son Pty Ltd (von Doussa, Mansfield and Goldberg JJ, 24 July 1998, unreported) followed

Bomanite Pty Limited v Slatex Corp Aust Pty Limited (1991) 32 FCR 379 referred to

ANTHONY HAMOD & ANOR v STATE OF NEW SOUTH WALES & ANOR

N 1418 of 2001

7 DECEMBER 2001

KATZ J

SYDNEY

THE COURT ORDERS THAT:

1          The application be dismissed.

2          The applicants pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

1                     There is before me an application which seeks extensions of time within which to seek leave to appeal from various interlocutory judgments given by a Judge of this Court, Conti J.  Further, on the assumption that those extensions of time are granted, the application also seeks leave to appeal from those interlocutory judgments.

2                     The application is brought both by an individual, Mr Anthony Hamod, and by a company, Hamock Investments Pty Limited.  I was told by Mr Hamod from the Bar table this morning that he is the sole shareholder of the company. The company did not appear before me by a legal representative. However, Mr Hamod sought leave to appear on behalf of the company, as well as on his own behalf, and I granted him that leave for the purpose of the hearing of the application.  I note that neither respondent to the application opposed Mr Hamod’s appearing on behalf of the company.

3                      The application for extensions of time, which was filed on 14 November 2001, identifies the relevant interlocutory judgments of Conti J as having been given on 28 February 2001, 26 April 2001, 18 May 2001, 16 August 2001, 21 September 2001 and 24 September 2001.  To have been sought in time, leave to appeal from each of those interlocutory judgments should have been sought within seven days from the pronouncement of the interlocutory judgment concerned: see O 52, par 10(2)(b) of the Federal Court Rules (Cth) (“the Rules”).

4                     My power to extend the time within which to seek leave to appeal from each of those interlocutory judgments comes from the paragraph of the Rules which I have just mentioned, while my power to grant leave to appeal from each of those interlocutory judgments, assuming I were to exercise my power to extend time, comes from O 52, par 10(2)(a) of the Rules.

5                     It is convenient to set out immediately the various interlocutory orders which were made by Conti J on the various days mentioned in the application for extensions of time.  Those interlocutory orders were as follows:

·        28 February 2001 (see Hamod v State of New South Wales [2001] FCA 157):

1.    The Amended Statement of Claim of the Applicants filed herein on 27 October 2000 be struck-out.

2.    The Applicants to have leave to replead in lieu a Further Amended Statement of Claim, the same to be filed and served within forty-two days from the date hereof.

3.    The Applicants to have leave to amend the Amended Application, the same to be filed and served within forty-two days from the date hereof.

4.    The Applicants to have liberty to apply for an extension of time for filing and serving a Further Amended Statement of Claim and a Further Amended Application on three business days’ notice.

5.    The Second Respondent’s Application for security for costs and the costs of each of the Respondents of the present Applications for Strike-Out of the Amended Statement of Claim and Amended Application be reserved until after service of the Further Amended Statement of Claim.

6.    Liberty be granted to any party to apply on three days’ notice at any time.

·        26 April 2001 (see Hamod v State of New South Wales [2001] FCA 495):

1.    All Motions before the Court be stood over to 18 May 2001.

2.    The time to replead a Further Amended Statement of Claim and Amended Application be extended for fourteen days to 11 May 2001.

3.    Costs be reserved.

·        18 May 2001:

“Stand over hearing of respondents motion to 7/9/01 at 10:15”.

·      16 August 2001:

“Applicants to file & serve an application for the matter to be cross-vested to the Supreme Court of NSW on or before 13/9/01 at 5pm

* Vacate hearing on 7/9/01”.

·        21 September 2001:

“List motion for hearing on 24/9/01 at 10:15 for hearing of application for security for costs”.

·        24 September 2001 (see Hamod v State of New South Wales [2001] FCA 1389):

1.    The Applicants pay the costs of each of the Respondents of the original statement of claim filed herein and subsequently abandoned.

2.    The Applicants to pay the costs of each of the Respondents of the strike-out proceedings relating to the amended statement of claim, including the costs of the proceedings held on 24 September 2001, with leave to have such costs taxed forthwith.

(I note that when I have not referred above to a medium-neutral citation for the order(s) concerned, I have instead quoted from the relevant report of listing, prepared by Conti J’s Associate, the terms of the order(s) made.)

6                     It will be apparent from a reading of the interlocutory orders set out above that, so far as those of any present potential moment are concerned, their effect was as follows: the version dated 27 October 2000 of the applicants’ statement of claim in the proceeding was struck out; the applicants were given leave to replead their statement of claim and also to amend the then-current version of their application; the applicants were ordered to pay the respondents’ costs thrown away by the amending of their original statement of claim; and the applicants were ordered to pay the respondents’ costs of the successful strike-out application regarding the version of the applicants’ statement of claim which followed the original, such costs to be taxable forthwith.

7                     I should mention here that the applicants took advantage of the leave granted to them by Conti J both to replead their statement of claim and to amend their application and, on 11 May 2001, the last day ultimately allowed for doing so, filed new versions of their application and statement of claim. Further, since the commencement of the present application for extensions of time, Conti J, on 29 November 2001, granted to the applicants leave further to amend their statement of claim.

8                     In Deighton v Telstra Corporation Limited (Lee, Heerey and R D Nicholson JJ, 17 October 1997, unreported), a Full Court of this Court identified matters that are to be taken into account in determining whether to extend the time within which to seek leave to appeal from an interlocutory judgment.  In joint reasons for judgment, their Honours stated (at 4),

“Under O 52 r 10(2)(b) of the Federal Court Rules (“the Rules”) an application for leave to appeal from an interlocutory order is to be made within seven days of the order.  The application for extension of time in this matter was not made until almost seven weeks after the date of the order.

Order 52 r 10(2)(b) permits the Court to extend the time for such an application but does not state what matters are to be taken into account in determining whether time should be enlarged.

Obviously there must be a satisfactory explanation for any delay in making the application.  Further, given that an appeal from an interlocutory judgment may be prosecuted only by the leave of the Court, being leave that is granted sparingly, it would be necessary for the Court to assess the prospects of such leave being obtained.  (See:  Kalaba v The Queen (Federal Court of Australia, Finn J, 13 September 1996, unreported); Wati v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Davies J, 4 April 1997, unreported.)

Also, having regard to the fact that O 52 r 15(2) provides that an order extending the time within which an appeal exercisable as of right may be commenced may be made only if special reasons for such an order have been shown, it must be that no less is required of an applicant for the grant of a like indulgence under O 52 r 10(2)(b) in respect of the enlargement of time in which to make application for the grant of leave to appeal.”

9                     Leaving aside the question whether a satisfactory explanation has been given for the delay in making the present application for extensions of time within which to seek leave to appeal and the question whether special reasons have been shown for granting the extensions of time within which to seek leave to appeal, it follows from Deighton that I must consider on the present application, in so far as it seeks extensions of time, the prospects of leave to appeal being granted, assuming the need for the grant of extensions of time within which to seek such leave to appeal did not exist.

10                  As to the prospects of leave being granted to appeal from Conti J’s various interlocutory judgments, I turn now to a case often cited in this Court in connection with the tests to be applied in deciding whether to grant leave to appeal from an interlocutory judgment, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ).  In that case, the Court spoke (at 399) of the major considerations to be derived from an earlier Victorian decision as providing “an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought”.  Those major considerations were two (see at 398): first, whether the correctness of the interlocutory judgment from which leave to appeal is being sought is attended by sufficient doubt; and, secondly, whether, supposing the interlocutory judgment to be wrong, substantial injustice would result if leave to appeal were refused.  The Court also stated (at 400) that “an important distinction to be observed” when deciding whether to grant leave to appeal from an interlocutory judgment,

“… is that between the common interlocutory decision on a point of practice ¾  concerning which the High Court has given … a strong warning that a ‘tight rein’ should be kept on appeals ¾  and an interlocutory decision determining a substantive right….”

11                  Decor has been followed many times since, on one occasion by another Full Court of this Court in Auspine Limited v H S Lawrence & Son Pty Ltd (von Doussa, Mansfield and Goldberg JJ, 24 July 1998, unreported).  In that case, the primary Judge had made a decision on an application to strike out certain paragraphs of the statement of claim.  Leave to appeal from that decision was sought, but refused by reference to the Decor approach.  The Full Court characterised the primary Judge’s decision in that case as having been one relating to practice and procedure and as having not affected the substantive rights of the parties.  The Full Court also described the primary Judge’s decision as a discretionary one.

12                  In the latter connection, it is worth recording that, in Bomanite Pty Limited v Slatex Corp Aust Pty Limited (1991) 32 FCR 379, French J said (at 391),

“The leave requirement for appeals from interlocutory decisions reflects a policy of restraint on the part of the court in the discharge of its appellate functions with respect to the decisions of its judges taken in the exercise of original jurisdiction regulating the preparation and progress of matters for trial.  Absent such a policy there is a risk that the pre-trial process in hotly contested cases would become fragmented and more expensive and lengthier than it has to be.  Moreover, the authority of judges charged with giving directions affecting the management of cases to the point of trial would be diminished.  And even when leave is granted, the court on appeal will not in such a case interfere with the exercise of judicial discretion unless it is satisfied that there has been some error of law or logic or some unfairness which is either apparent on the face of the reasons or implicit in an unreasonable result….”

13                  In substance, the interlocutory judgments sought to be made the subject of the grant of leave to appeal in the present matter fall into the category of decisions on points of practice, on which decisions a tight rein should be kept so far as appeals are concerned.

14                  In any event, I do not accept that the interlocutory judgments presently sought to be made the subject of the grant of leave to appeal, supposing the interlocutory judgment concerned to be wrong, would result in substantial injustice if leave to appeal were refused or, to put it as French J did in Bomanite, there is some “unfairness which is either apparent on the face of the reasons or implicit in an unreasonable result”.

15                  In his submissions before me today on his own behalf and on behalf of the company, Mr Hamod sought to point to substantial injustice to the applicants which would result if leave to appeal were refused, supposing that Conti J’s interlocutory judgment of 28 February 2001 were wrong.  The source of that substantial injustice was said to be the fact that the judgment and, more particularly, the reasons for judgment of Conti J were publicly available and, in particular, had been made available on the Internet.  According to Mr Hamod, the public availability of Conti J’s reasons for judgment, particularly on the Internet, had already caused serious damage, both to his and to the company’s commercial reputations.

16                  I do not accept that when one is speaking about substantial injustice resulting from the leaving undisturbed of an interlocutory judgment, one is speaking of damage of the sort of which Mr Hamod was speaking.  The substantial injustice contemplated is substantial injustice affecting a party’s ability to conduct subsequently the case in which the interlocutory judgment has been given.

17                  Finally and most importantly, as to none of Conti J’s interlocutory judgments the subject of the present application have I been persuaded that the correctness of the interlocutory judgment from which leave to appeal is being sought is attended by sufficient doubt or, to put it as French J did in Bomanite, there is in the interlocutory judgment some “error of law or logic”.

18                  The most significant of those interlocutory judgments, as I understood Mr Hamod to accept during the course of submissions before me, was Conti J’s decision striking out the then-current statement of claim, but permitting its repleading.  I am unable to see how it could justifiably be said of that decision that that there was in it “some error of law or logic”.

19                  Mr Hamod did submit before me that there had been some error in principle in Conti J’s approach to the question of the sufficiency of the then-current statement of claim, but at no stage during submissions could I persuade Mr Hamod to condescend to any detail as to what that error in principle in Conti J’s approach was. Speaking for myself, I can see no reason to take a different view from Conti J’s as to the sufficiency of the pleading then under consideration.

20                  In those circumstances, I conclude that the prospects of leave to appeal from the various interlocutory judgments being granted, assuming the need for the grant of extensions of time within which to seek such leave to appeal did not exist, are not such that I should grant the necessary extensions of time.  Accordingly, I propose to dismiss the application, in so far as it seeks extensions of time within which to seek leave to appeal from the various interlocutory judgments concerned.  That will have the necessary effect that the entire application will be dismissed.

21                  As to the question of the costs of the application for extensions of time and leave to appeal, Mr Hamod submitted on his own behalf and on behalf of the company that if I should dismiss the application, then I should reserve the costs of it. However, that submission proceeded on a misunderstanding as to the nature of the proceeding with which I am presently dealing. I am not hearing some aspect of the proceeding before Conti J, but rather an entirely separate proceeding which has, as a result of what I have already said, failed. In those circumstances, there can be no justification for reserving the costs of the application

and I will order that the applicants pay the respondents’ costs of it.

Associate:

Dated:              14 December 2001