FEDERAL COURT OF AUSTRALIA

Hurd v Zomojo Pty Ltd (No 2) [2013] FCA 146

THE COURT ORDERS THAT:

1.    Leave is refused to extend the time within which to apply for leave to appeal from the judgment of Gordon J of 5 February 2013.

2.    Leave is refused to extend the time within which to apply for leave to rescind orders made by Gordon J on 5 February 2013 with respect to a cross-claim.

3.    The applicants for leave pay the respondents’ costs of and associated with all interlocutory applications before the Court on 26 February 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    These reasons for judgment deal with three interlocutory applications which were advanced by Mr Matthew Hurd, the first applicant, on his own behalf. These reasons should be read in conjunction with the reasons also published today concerning a failed application by Mr John Hurd for leave to appear for the applicant companies; see Hurd v Zomojo Pty Ltd [2013] FCA 145.

2    On 26 February 2013, the Court refused to extend the time necessary to permit two interlocutory applications before it (seeking leave to appeal) to be filed out of time. The applications were only filed two days late but as each application was bound to fail, there was no utility in permitting an extension of time.

3     The first such application was one by Mr Matthew Hurd for leave to appeal from the judgment and orders of Gordon J of 19 December 2012 and 5 February 2013 respectively. The well established test for whether leave to appeal against an interlocutory decision should be granted was succinctly stated by Buchanan J in Shannon v Commonwealth Bank of Australia [2012] FCA 1378 at [12]. It is:

[w]hether the decision is attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong…

4     Senior Counsel for the respondents acknowledged that all issues that Mr Matthew Hurd sought to raise by way of an interlocutory appeal could be ventilated by him in any appeal from final orders made by Gordon J after a further hearing dealing with the question of damages. That hearing is scheduled to be held in July 2013.

5    In any event, after considering the proposed grounds of appeal and the primary judge’s reasons for judgment published on 19 December 2012, I was not convinced that her Honour’s decision was attended with sufficient doubt to warrant its reconsideration. No substantial injustice to Mr Matthew Hurd would arise as a result of leave to appeal being refused.

6    Mr Matthew Hurd also sought a stay of certain of the orders made by Gordon J which required action by the applicant companies by 4.00 pm on 26 February 2013. He conceded that none of the matters there referred to required him personally to take any step. Consequently, the Court formed the view that there was no utility in granting a stay. In any event, an extension of time for leave to appeal having been refused, there was no jurisdictional basis on which to found the operation of any stay.

7    Mr Matthew Hurd also represented himself and the Hurd Family Superannuation Fund in their interlocutory application to set aside her Honour’s dismissal of their cross-claim. Leave was refused to extend the time to file that application. That is an issue which Mr Matthew Hurd and the Fund may seek to advance in any appeal which may be lodged at the conclusion of the primary judge’s dealing with the proceeding.

Associate:

Dated:    1 March 2013