FEDERAL COURT OF AUSTRALIA

Modra v State of Victoria [2011] FCA 1375

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the order of Gray J of 9 November 2011 is dismissed.

2.    The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

REASONS FOR JUDGMENT

1    The application currently before the Court is one for leave to appeal from parts of an interlocutory order of Gray J made on 9 November 2011. The relevant portions of that order for which leave to appeal is sought require the filing and serving of an amended statement of claim in compliance with a previous order of his Honour made on 15 June 2011, and concerning the payment of costs.

2    The questions for determination on this application are:

    whether Gray J’s order is attended with sufficient doubt to warrant its reconsideration by a Full Court; and

    whether substantial injustice would arise from a refusal of leave, assuming the order below to be wrongly made: see Décor Corp v Dart Industries Inc (1991) 33 FCR 397.

3    The matter before his Honour concerned a question of practice and procedure; that is, the adequacy of a pleading and whether it complied with his Honour’s previous order of 15 June 2011. At the outset it should be emphasised that one who seeks to disturb an order made in the exercise of the Court’s discretion on a matter of practice and procedure faces what was described by Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at [393] as a “formidable task”. Further, as Gibbs CJ, Aickin, Wilson and Brennan JJ said in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at [177]:

“… appellant courts exercise particular caution in reviewing decisions pertaining to practice and procedure”.

The critical problem facing the applicant for leave in this matter is that if his Honour took a wrong approach to the question of the adequacy of the pleading, no substantial injustice resulted. The statement of claim was not struck out with no right to re-plead. The applicant was given another opportunity for the pleading to conform with what the docket judge considered to be the proper principles of pleading. His Honour was entitled to insist on compliance with his order of 15 June 2011 as a matter of proper case management. If the applicant does not want to re-plead in the way his Honour suggests, he should say so in correspondence which accompanies whatever pleading the applicant considers is adequate to comply with the relevant parts of the order of 15 June 2011 that the order of 9 November 2011 refers to.

4    The applicant may then ventilate those issues before the docket judge at a further directions hearing. If that discourse results in the pleading or part of it being struck out, then issues of substantial injustice might arise, but presently they do not.

5    There is no reason also to disturb Gray J’s costs order. Costs follow the event unless there are special circumstances justifying the making of some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J. For the forgoing reasons the Court orders:

1.    The application for leave to appeal from the order of Gray J of 9 November 2011 is dismissed.

2.    The applicant pay the respondent’s costs of the application.

Associate:

Dated:    2 December 2011