FEDERAL COURT OF AUSTRALIA

Council of the City of Sydney v Goldspar Australia Pty Limited [2006] FCA 641

PRACTICE AND PROCEDURE – whether Order 29 order should be made after interim reasons delivered where opposed

Federal Court Rules, O 29

Council of the City of Sydney v Goldspar Australia Pty Limited [2006] FCA 472 related

Australian Building Construction Employees and Builders’ Labourers’ Federation v Employment Advocate (2001) 114 FCR 22 cited

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 cited

Save the Ridge Inc v Commonwealth [2005] FCAFC 203 cited

COUNCIL OF THE CITY OF SYDNEY v GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) AND DOUGLAS RAWSON-HARRIS; GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) v COUNCIL OF THE CITY OF SYDNEY

NSD 728 OF 2002

GYLES J

26 MAY 2006

SYDNEY

REASONS FOR RULING

1                     On 3 May 2006 I delivered what was called Reasons for Judgment.  The only order made was that the proceeding stand over to a date to be fixed (Council of the City of Sydney v Goldspar Australia Pty Limited [2006] FCA 472).  The last paragraph of the reasons was as follows:

‘It follows that Goldspar is entitled to damages for the repudiation by the Council of its obligations under the contract.  During the course of submissions, it was agreed that the quantum of damages would not be dealt with before I had decided issues of liability.  I have now done so and the matter will stand over to enable the hearing on damages to be scheduled and for the parties to raise any other issues arising out of these reasons.’

2                     The matter was stood over to 24 May 2006.  The following exchange then took place. 

‘… MR CONDON:     Your Honour, I’m not certain your Honour made a formal order under order 29, separating the issue.

HIS HONOUR:           No, I didn’t.  I wasn’t asked to.

MR CONDON:           No, that wasn’t said critically, I was just trying to address my own recollection, but if one has regard to order 52 rule 10(2A)(b), we have seven days if we wish to seek leave to appeal from your Honour’s judgment.  You Honour can extend time ---

HIS HONOUR:           I don’t think you can, Mr Condon.  I mean you couldn’t appeal against the order that the matter stand over.

MR CONDON:           Yes, I think that’s probably right, your Honour.

HIS HONOUR:           If you wish to contend that the matter should be put in that state ---

MR CONDON:           Yes, I’m not sure if I want to, your Honour.

HIS HONOUR:           No. I think it’s a matter of substance, but you can take it that – well, I don’t suppose I can give any assurances, but I do not believe that time will be running at the moment.

MR CONDON:           Thank you, your Honour.

HIS HONOUR:           If you, or if your side wishes to put the matter in a position where it can appeal then you’ll need to persuade me that that’s the right thing to do.  I must say at the moment I would require some persuasion about that.

MR CONDON:           I understand your Honour’s reasons why.

HIS HONOUR:           I don’t have a closed mind. …’

Discussion then ensued about the preparation of the matter for hearing on the issue of damages. 

3                     Prior to 24 May, the cross-respondent, the Council of the City of Sydney (the Council) (for whom Mr Condon appeared on 3 May 2006) sought leave to appeal in the appellate jurisdiction of the Court.  That motion has not yet been dealt with.

4                     When the matter came before me on 24 May, the Council requested that I make orders pursuant to O 29(2) of the Federal Court Rules for the determination of certain separate questions, the answers to which were said to follow from the Reasons for Judgment which I had delivered.  It was put that, in the alternative, I should make declarations to the same effect.  I indicated that I would not make declarations.  Interlocutory declarations are controversial and, at least, are usually to be avoided (per Barwick CJ and Jacobs J in Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 at 307; per Hayne and Callinan JJ in Dovuro Pty Limited v Wilkins (2003) 215 CLR 317 at [143]; Warramunda Village Inc v Pryde (2001) 105 FCR 437; cf Warramunda Village Inc v Pryde (2002) 116 FCR 58 per Finkelstein J at [64]–[88]). Counsel for the cross-claimant, Goldspar Australia Pty Limited (Goldspar) indicated opposition to making of any order pursuant to O 29.  Argument then ensued as to that issue and I have taken time to consider the matter.  I decline to make the order sought. 

5                     Order 29(2) can be a useful procedure.  It was utilised at an earlier stage of this proceeding.  However, both authority and practical experience indicate that use of it should be approached cautiously (Save the Ridge Inc v Commonwealth [2005] FCAFC 203 at [15]; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495).  It would be unusual for the procedure to be adopted without the consent of both parties in a case such as this.  Breach of contract is a common law cause of action.  The common law only envisages one result – the ultimate verdict.  As I indicated to counsel during the course of argument, if an application for an order had been made by consent in advance, I may have acceded to it.  I probably would have declined to do so if it had been opposed by the moving party, in this case Goldspar.  But the occasion did not arise for consideration of that question as no application was made by either party.  It is not suggested that this is a case in which the Court and the parties proceeded upon the basis that an order would be made pursuant to O 29(2) but neglected to attend to that formality.

6                     Whilst it may be technically possible to make the order after the event, in this case it would be wrong to do so against the opposition of the moving party.  It is too late to make or change the rules at this stage.  A useful summary of the position appears in the judgment of the Full Court in Australian Building Construction Employees and Builders’ Labourers’ Federation v Employment Advocate (2001) 114 FCR 22 at [5]–[7].  I did not, and do not, intend to lose control of this cross-claim.  I wish to complete disposition of it to final judgment as soon as reasonably possible.  The proceeding as a whole has been fragmented more than enough already.

7                     Many of the arguments advanced by counsel for the parties were, in truth, directed to the question as to whether or not there should be an interlocutory appeal.  That issue would have arisen if I had made dispositive orders or declarations.  It is a false issue so far as I am concerned. 

Associate:

Dated:              26 May 2006