FEDERAL COURT OF AUSTRALIA

Kyriackou v Australian Securities and Investments Commission [2010] FCA 253

THE COURT ORDERS THAT:

1.         Leave to appeal from the orders of Goldberg J in the proceedings numbered VID 448 of 2007 of 20 January 2010 be refused.

2.         The applicants for leave to appeal pay the costs of the respondent to that application, such costs to be taxed in default of agreement.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
  The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     Before the Court is an application which the applicants regard as unnecessary or claim to have been made only “out of more abundant caution”.  That application is for leave to appeal from orders of a Judge of the Court which were made in consequence of his Honour’s reasons appearing sub nom. Australian Securities & Investments Commission v Kyriackou [2010] FCA 9.  The applicants’ primary contention is that they do not require leave to appeal from those orders and that they can appeal, as of right, to a Full Court of this Court.  Against the possibility that the primary contention cannot be sustained, the applicants also advance an alternative argument in support of the application for leave to appeal.  It is convenient to examine in turn the two contentions which have been advanced.  However, I should first outline the background to the orders which have been made at first instance.

Background

2                     The primary Judge’s orders, on 20 January 2010, were relevantly that the Australian Securities and Investments Commission (“ASIC”) be given leave under O 22 r 2(1)(d) of the Rules of this Court to discontinue the proceeding, and that there be no order as to the costs of the proceeding (save for the costs of an application made on 12 September 2008 which his Honour ordered to be borne by the applicants).  As his Honour remarked, there was “considerable background” to the matter.  However, it is unnecessary for present purposes to rehearse that background in detail.  No party sought to dispute the accuracy of the summary appearing at [10]-[36] of the reasons at first instance, which I gratefully adopt.  That summary sets out the history of a long-running dispute between ASIC and the defendants arising from an investigation by ASIC into the affairs of the defendants.  That investigation had been prompted by, or pursued because of, ASIC’s suspicion that the defendants had, in contravention of s 601ED of the Corporations Act 2001 (Cth) (“the Corporations Act”), been operating an unregistered managed investment scheme as defined in s 9 of that Act.

3                     On 22 July 2008, a proceeding instituted by ASIC against the defendants came on for hearing before the primary Judge.  His Honour was informed at that time, as appears from [36] of his reasons, that:

there had been an agreement between the parties that the proceeding be either discontinued or dismissed but there was a dispute as to who should pay the costs of the proceeding

His Honour then records that he was not prepared to grant leave to discontinue the proceeding until the issue of costs had been resolved, because, had he done so, “there would then be no vehicle alive in respect of which an order for costs could be made”.  The proceeding was therefore stood over, and referred for mediation (on the issue of costs) to a Registrar of the Court.  That mediation was unsuccessful, and so, on 12 September 2008, the remaining defendants filed a motion seeking that ASIC pay their costs taxed on an indemnity basis or alternatively between party and party.

4                     In aid of their motion, those defendants, on 17 October 2008, served on ASIC a notice to produce.  That notice sought all ASIC files brought into existence since the investigation into the defendants’ affairs had commenced.  As the primary Judge remarked, the notice was “served with the intention of establishing that ASIC’s case against the defendants was bound to fail from the outset of the proceeding and that the defendants were accordingly entitled to their costs on an indemnity basis”.  ASIC applied to set aside the notice to produce.  That application was heard on 14 November 2008 by Finkelstein J who, on 9 December 2008, set aside the notice: see Australian Securities & Investments Commission v Kyriackou [2008] FCA 1860.  His Honour reasoned that the production of the material which had been sought would lead, not merely to an inquiry into the costs which had been incurred, but to a trial of the action for the sole purpose of resolving the issue of costs, a course deprecated by authorities such as Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Quin (1997) 186 CLR 622: see, especially, per McHugh J, at 624.  Referring to Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 and several authorities which preceded it, Finkelstein J then approved the proposition, advanced by Gillard J in that case, at [49], that evidence in support of an order for costs in a proceeding discontinued before trial “must be confined and not venture into areas of disputed fact”.

5                     Notwithstanding the setting aside of their notice to produce, the remaining defendants persisted with their application for costs, which came on for hearing before Goldberg J on 16 March 2009.

The application before the primary Judge

6                     The defendants’ case for costs before the primary Judge, as appears from his Honour’s reasons, asserted, first, that the case raised against them by ASIC was inherently weak and bound to fail as there was no scheme in existence which required registration, and, secondly, that ASIC had effectively abandoned its case against them, thereby entitling them to costs, in support of which reference was made to One-Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548.  The learned primary Judge summarised the submission as follows:

At the hearing on 16 March 2009, the first and fourth to seventh defendants submitted that the claim against them was, from the outset, weak and almost certain to fail.  ASIC was said effectively to have abandoned its case against these same defendants and it was submitted in the alternative, that at least from 5 October 2007, it had become apparent to ASIC that it should have discontinued the proceeding given that APM had been wound up and that any alleged scheme was not operative.

The defendants justified this submission by a consideration of the merits of ASIC’s case.  They contended that the three elements necessary for a scheme to be considered a “managed investment scheme” were not present, referring to Australian Securities and Investments Commission v Pegasus Options Group Pty Ltd (2002) 41 ACSR 561 at par [28].  They submitted that there was no such scheme requiring registration under the Corporations Act.  It was submitted that ASIC’s outline of submissions accepted that in connection with the Calderone Financiers Agreements (dated 14 and 16 September 2005) neither the replacement securities nor the promised payments had been made and that the “scheme” “had not been fully implemented because the first step, release of the securities, had not occurred …”  The defendants submitted that it then followed that as the first step of the alleged scheme had failed, it could not be maintained that a scheme was in operation.

7                     That submission, as amplified in written submissions and during the hearing of the application, was not upheld by his Honour, who was “not satisfied that ASIC’s case was almost certain to fail or that the defendants were almost certain to succeed. Whether this was so, could only be determined on a full trial of the merits of the case”. 

Leave to appeal

8                     As already indicated, the applicants’ primary contention has been that they do not require leave to appeal from the orders of the primary Judge.  However, they are not prepared to rely exclusively on that proposition by pursuing an appeal as of right without alternatively seeking leave to appeal.

9                     A party to litigation ordinarily has a right of appeal from orders pronounced in the exercise of the original jurisdiction of the Court; see s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).  Section 24(1A), however, requires that the Court or a Judge give leave to appeal from an interlocutory judgment of the Court.  As the authorities emphasise, analysis in this connexion is to be directed to whether the judgment from which an appeal is sought to be instituted is interlocutory or final in form: see Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112; Hall v Nominal Defendant (1966) 117 CLR 423.

10                  With that in mind, Mr Cawthorn SC, who appeared with Mr Thomas of Counsel before me for the applicants for leave, relied upon this passage from the reasons of Gibbs J in Licul v Corney (1976) 180 CLR 213, at 225;

The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view -- which was preferred by the Court of Appeal in Salter Rex & Co v Ghosh [[1971] 2 QB 597]  -- is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant [(1966) 117 CLR 423], should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?

The only outstanding issue between the parties was as to costs, and so, Mr Cawthorn said, the order that there be no order as to costs finally disposed of the rights of the parties.

11                  Mr Cawthorn’s analysis demands further refinement in at least two respects.  As Gibbs J went on to remark in Licul, the order at issue in that case was not “final in nature whatever its practical effect may be”.  That observation draws attention to the formal aspect, as distinct from the operative effect, of the order in question.  It is appropriate, in this context, to note Cozens-Hardy MR’s refusal, in In re Page; Hill v Fladgate [1910] 1 Ch 489, to:

attempt the task of defining exhaustively or accurately the meaning of an interlocutory order. I leave that to others. The only point we have to decide here is whether the order in this particular case is an order which must be appealed against within the time limited for appeals from interlocutory orders

See Hall v Nominal Defendant, supra, per Taylor J at 439 ff.  Like In re Page, the present case concerns a narrow question arising from the circumstances of the proceedings before the Court, i.e. whether the orders made by the primary Judge, in the context in which they were made, were interlocutory (in which case leave to appeal will be required) or final (so that an appeal lies as of right).

12                  It may be true that the costs order, from a practical point of view, disposed of the real remaining dispute between the parties.  In this case, that does not entail that the proceedings have been finally resolved by the costs order.  In my view, the issues which have to be resolved for an order to be final are those disclosed by the pleadings or other documents defining the matters in controversy between the parties.  By contrast, his Honour’s orders here were incapable of giving rise to an issue estoppel in the sense explained in Port of Melbourne Authority v Anshun Pty Ltd [No 2] (1981) 147 CLR 589;  consequently, it is hardly open to characterise those orders as final.

13                  For the reasons already explained, it is unnecessary for present purposes to engage in a more far-reaching analysis of the distinction between an interlocutory judgment and a final judgment.  In all the circumstances of this case, I have concluded that the primary Judge’s orders were interlocutory, rather than final.  I am reinforced in that conclusion by Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited [2010] FCAFC 16, to which I was referred to Mr Scott of Counsel for ASIC.  In that case, a single Judge of the Court had ordered, relevantly, that;

each party is to bear its own costs of and incidental to leave being granted on that date to the Applicants to discontinue their proceeding

That order was held by the Full Court, at [101], to be “interlocutory in form”.

Ought leave be given to appeal from the orders of the primary Judge?

14                  Each party before the Court accepts that the question of whether leave ought to be granted is to be decided by application of the tests enunciated by a Full Court of this Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, namely, first, whether the decision from which leave to appeal is sought is attended by sufficient doubt to warrant its being reconsidered by a Full Court, and, secondly, whether, assuming the decision to be wrong, substantial injustice would result if leave to appeal were refused.

15                  The doubt for which the applicants contend is predicated, essentially, on an argument that the primary Judge should conclusively have determined the issue which had been live in the proceeding before it was discontinued by consent.  That argument was expressed in this way in written submissions;

At paragraphs 53 and 68 of the Reasons for Judgment…, the learned [primary] judge did not accept the Appellants’ fundamental submissions that the case as proposed by ASIC was almost certain to fail and the Appellants’ case was almost certain to succeed and went on to say that those issues could only be determined on a full trial on the merits of the case. This was incorrect. He could and should:

(a)        have determined whether there was a managed investment scheme; and

(b)        have counted the number of members: if less than 20 any scheme was not registrable.

It was submitted, in this connexion, that the primary Judge mistook the nature or effect of certain agreements, and misunderstood the effect of the release of securities under those agreements.  Alternatively, it was submitted that, even if the scheme identified was a managed investment scheme, it did not require registration because it had less than 20 members (see the Corporations Act, s 601ED(1)).  That argument was advanced in these terms:

Plainly, the learned [primary] judge did not require a merits hearing to determine how many members were part of the alleged scheme. The evidence concerning this issue was before the Court and the manner of the participation of the Financiers was not in dispute. Therefore, the learned judge erred in law in not determining the status of the Financiers in favour of the Appellants in accordance with the law and supporting authorities. Accordingly, a hearing on the merits was not required: see General Steel Industries Inc v Commissioner of Railways (NSW) (112 CLR at 130, referred to by Goldberg J at [52]).

16                  Ultimately, the argument, as appears from written submissions, was that;

The learned [primary] judge erred in failing to embark on “a detailed consideration and analysis of the merits of ASIC’s case” [53]. He should have done that. Had he done that he would have concluded that the Applicants would have succeeded. He could have formed a “clear view” about the merits:  Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FLR 248 at 287…

17                  Mr Scott for ASIC submitted that I ought not to entertain submissions like those advanced on behalf of the applicants, which he described as misconceived.  In his written outline, he contended that those submissions had “three principal deficiencies”:

First, having accepted that a trial on the merits is inappropriate on an argument about costs on discontinuance, they seek to propound (at length) arguments on the merits. The plain fact is that (as Goldberg J found) there were several controversial issues going to the merits…

The second misconception is to overlook the significance of the factors referred to by Goldberg J at [76]. These included, inter alia, the fact that two judges of the Federal Court had already ruled to the effect that ASIC had an arguable case sufficient to attract interlocutory relief and to resist a strike-out application by the present applicants. Given that there were no new facts before Goldberg J, what, ASIC asks rhetorically, was Goldberg J to do as a matter of comity?...

The third misconception is to ignore the fact that this was an exercise of discretion as to costs, which of course an appeal court would be “loathe to overturn”. See Rickus supra at [113].

18                  The question, however, may be disposed of more shortly.  The primary misconception in the submissions of the applicants for leave is about the task which the primary Judge had to perform.  It is to be remembered that, when the proceeding came on before him, he was informed that it had been discontinued by consent, and that the only outstanding issue was costs.  Mediation of the costs issue having been unsuccessful, the Judge had to resolve only that issue.  In undertaking that task, his Honour was entitled to, and did, examine on the material before him the merits of the cases for and against the application, and the conduct of each of the parties to the proceeding.  However, he was not required to come to any concluded view about the likely success of claims which would have been pursued or the defences which would have been raised had the matter proceeded to trial.  In the first place, that would have involved the resolution of a hypothetical dispute, the parties already having reached a negotiated outcome so that there was no live issue between them other than costs.  Secondly, to reach such a concluded view would have required the receipt of at least some evidence and, possibly, an evaluation of the credibility of competing versions of the relevant facts.

19                  His Honour is therefore not to be understood, in my view, as having purported to come to a concluded view about the substantive dispute which had become moot.  His examination of the merits of that dispute was no more than a step on the way to informing his exercise of the discretion conferred by s 43 of the Federal Court Act.  Sub-section (2) of that section is in these terms:

(2)        Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge

20                  Section 43 confers a broad and ample discretionary power “not to be read down otherwise than by judicial principle conformable with the amplitude of the power”;  see DSE (Holdings) Pty Limited v InterTAN Inc [2004] FCA 1251, per Allsop J, at [14].  A party seeking to set aside an exercise of a discretion of that kind must show that the primary Judge has acted upon a wrong principle, has been influenced by extraneous or irrelevant matters, has mistaken the facts or has not taken into account some material considerations;  see House v The King (1936) 55 CLR 499, at 504-5.  The present applicants have not discharged their burden in any of those ways.  The nearest they have come to doing so was to suggest that his Honour failed to take account of the fact that, on any view of the available evidence, ASIC’s case was bound to fail.

21                  In my view the applicants have not demonstrated the first premise of that argument.  His Honour’s assumption that ASIC had arguable prospects of success was not, when examined against the facts which were undisputed, obviously invalid.  This was not a case like General Steel v Commissioner of Railways (NSW) (supra)  where Barwick CJ upheld an application to strike out a statement of claim as disclosing no viable cause of action after pointing out, at 130, that “argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”  The conclusion that ASIC’s case could not possibly succeed could only be arrived at if facts which were far from being undisputed were established. 

22                  One aspect of the case serves to indicate that there were matters seriously in issue at the time of ASIC’s discontinuance as to which the relevant facts were not agreed or conceded.  That is that it was necessary for ASIC to establish that the managed investment scheme for which it contended had more than 20 members; see s 601ED(1) of the Corporations Act.  It was strongly arguable that the “financiers” who agreed to release, pursuant to the agreement dated 14 September 2005 (“the Agreement”) to Australvic securities over parcels of land formerly owned by the developers contributed “money’s worth” as consideration to acquire a benefit under those agreements in the form of payments in accordance with the Schedule to the Agreements.  On that view, each individual or group entity designated as a “financier” in Item 1 of the Schedule was a member of the managed investment scheme for which ASIC was contending, and there were clearly more than 20 members.

23                  The issue as to costs which his Honour had to resolve was not an appropriate vehicle for the resolution of genuinely disputed questions of fact or mixed fact and law like that indicated in [22], above.  It follows that his Honour’s exercise of discretion was not attended by sufficient doubt to warrant its reconsideration by a Full Court.

24                  The test in Décor v Dart, as I noted in VYFT v Minister for Immigration and Citizenship [2009] FCA 937, is cumulative.  Accordingly, my conclusion that insufficient doubt attends the primary Judge’s exercise of his discretion makes it is unnecessary to consider the second limb of the test in Décor v Dart.

25                  There is one remaining matter.  During the hearing of this application, Mr Cawthorn suggested that, if leave were required, it might most appropriately be sought together with, or immediately before, any appeal in the proceeding and therefore determined by a Full Court of this Court.  That course is undoubtedly available;  see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543.  In that case a Judge of this Court had refused the applicant’s application for an extension of time in which to appeal from the orders of another Judge of the Court, i.e. the trial Judge.  The Full Court which determined the case accepted, on a limited basis (see at 553-554), that there was some “election” to be made as to whether, when leave to appeal from the orders of a Judge of the Court is required, the application for leave is made to a Judge or to the Full Court.  By whom, though, is that election to be made?  Their Honours found it unnecessary to determine that question, but made these observations, at 554;

… we think that it is the Court, not the applicant, that has the ultimate authority to determine whether an application for leave should be determined by a single judge or a Full Court. Section 25(2) of the Federal Court Act merely says that applications, inter alia, for an extension of time in which to institute an appeal "may be heard and determined by a single Judge or a Full Court". The subsection does not imply, in our view, that a single judge before whom an application is listed (whether or not at the request of the applicant) must determine that application, as distinct from referring it, or proposing that it be referred, to a Full Court if he or she thinks that there are sound reasons for doing so. Similarly, O 52, r 15(2), although empowering a single judge to give leave to file a notice of appeal, does not imply that the single judge is obliged to determine the application notwithstanding he or she forms the view that a Full Court is a more appropriate forum for the particular application.

It is, in our view, open to an applicant to request that an application for leave to appeal be listed either before a single judge or a Full Court, as the applicant prefers. Ordinarily, if such a request is made, we would expect the Registry to accede to it, recognising of course that the composition of the Court, whether comprised of a single judge or the Full Court, is a matter for the Chief Justice under s 15(1) of the Federal Court Act. If the Registry does not accede to the applicant's request, it is open to the applicant to ask the Court or judge before whom the matter is listed to consider referring it to a Full Court or a single judge (as the case may be). It is then for the judge or the Full Court before whom the matter is listed to consider whether the matter is more appropriately dealt with in the manner suggested by the applicant. If, for example, a single judge considers that the application for leave should be dealt with by a Full Court, he or she would make directions for the matter to be so listed, subject of course to the authority of the Chief Justice, pursuant to s 15(1) of the Federal Court Act, to determine the constitution of the Court in a particular case and to any arrangements that had been made under that subsection. If, on the other hand, the single judge determines the application for leave (whether or not an application is made for the matter to be listed before a Full Court), that is the end of the application. No appeal is available, except by special leave to the High Court.

The view their Honours took of the question of election (i.e. that it is, in truth, an election to be made by the Court, albeit that a party’s expressed preference may bear upon the question) has since been regarded as the correct one: see  Kristoffersen v Department of Employment, Workplace Relations & Small Business [2002] FCAFC 269, especially at [13]ff, per Drummond J, with whom Cooper and Dowsett JJ agreed, and Cadence Asset Management Pty Ltd v Concept Sports Limited [2006] FCA 944, per Young J, at [23]-[27], and the authorities to which his Honour there refers.

26                  Thus, a Judge of the Court hearing an application for leave to appeal from orders of another Judge undoubtedly has power to refer the application to a Full Court – and, as the applicants for leave in this case submitted – to make an order that the application be heard concurrently with, or immediately before, any appeal (subject to any contrary order of the Full Court).  However, as a Full Court of this Court remarked soon after the gate-keeper mechanism in s 24(1A) was enacted;

The purpose of the amendments is plain from the text of the amendments themselves when considered in light of the mischief to be cured. The amendments are intended to have the result that appeals from interlocutory judgments may be brought to this Court only by leave and that a party may apply to a single judge or a Full Court for leave once and only once. No appeal lies from that decision whether as of right or by leave.

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, at 431.

27                  The need for economy in utilizing judicial resources tends in favour of the view that an order referring the application for leave to a Full Court should usually be made only when the merits of the proposed appeal are inextricably bound up in the exercise of the discretion to grant leave.  On the other hand, if the application for leave can properly and conveniently be separated from the merits of the proposed appeal, the application for leave ought generally be heard by a single Judge.  Considerations, as I have said, of the efficient distribution of judicial resources, as well as likely expense, convenience, and, in particular, the risk of duplication of the substance of each hearing will bear upon the question of the election which is to be made.  Considerations of that type informed the decision to order a concurrent hearing of the application for leave to appeal and the appeal itself in, for example, Les Laboratoires Servier v Apotex Pty Ltd [2009] FCA 1139.

28                  In this case, as I have endeavoured to explain, it is not necessary to decide the presumptive appeal on the merits in order to resolve whether the primary Judge’s order is attended by sufficient doubt.  The only question involved in deciding that issue was whether ASIC’s application had arguable prospects of success.  As already indicated, I cannot discern any relevant mistake or omission in the learned primary Judge’s approach to answering that question.

29                  The applicants chose, for reasons which no doubt appeared good to them, not to subject ASIC’s case to a fully contested hearing.  Having agreed to ASIC’s discontinuing its application, it is not now open to them to seek, by a side wind, to establish that one or other of their defences would ultimately have succeeded.  They have sought to do that by attacking provisional views expressed by the primary Judge about the nature, strength and conduct of each party’s case in the course of an exercise of his discretion as to the award of costs.  In those circumstances, it is not open to the Court to perform the task or reach the conclusion for which the applicants contend.

Conclusion

30                  So far as it is necessary for me to do so, I have concluded that leave to appeal from the primary Judge’s orders is necessary.  For the reasons outlined above, I would refuse that leave.  The applicants must pay ASIC’s costs of the application for leave.  The orders of the Court will be:

1.         Leave to appeal from the orders of Goldberg J in the proceedings numbered VID 448 of 2007 of 20 January 2010 be refused.

2.         The applicants for leave to appeal pay the costs of the respondent to that application, such costs to be taxed in default of agreement.

Associate:

Dated:         22 March 2010