Discussion
68 The application for leave to rely on the FASOC remains pending. Such leave has neither been formally opposed, nor, perforce, refused at this stage. Before me, however, counsel for the first respondent stated that it would oppose a grant of leave to rely on the FASOC and acknowledged that in the light of the answers to the separate questions, such leave would almost certainly be refused.
69 In principle, however, there was nothing to prevent the applicant from producing and seeking leave to rely on a new proposed amended pleading which would not fall foul of the answers to the questions. The applicant had previously asserted, including before Tracey J, that the answers would not be dispositive of the proceeding. The possibility of a new and different proposed pleading was, as the respondents submitted, a critical impediment to a grant of leave to appeal, as although the answers related to a particular proposed pleading (to which the respondents objected on bases additional to the controversies addressed by the answers) there could be no certainty about the final form of the applicant's pleading. Such fluidity rendered any appeal inappropriate. Moreover, the opacity of the FASOC would create difficulties in an appeal from the answers which were tied to it.
70 In the course of the hearing, the applicant made clear that he no longer asserted that the answers were not dispositive. Counsel for the applicant frankly stated that no revised proposed pleading which assumed the correctness of and took into account the answers to the separate questions could be drafted, as the answers struck out the heart of the applicant's case. Counsel for the applicant stated that the fundamental case outlined in the original application (which, despite some uncertainty, appeared to be the only extant application) was also untenable in light of the answers. Counsel further submitted that any uncertainty about the future outcome of the proceeding was illusory, as in practice (given that the applicant now disavowed any possibility of a pleading which differed in fundamental allegations from those rendered untenable by the answers), the respondents would oppose, and his Honour would refuse, leave to rely on the FASOC. Although the proceeding would not thereby stand dismissed, the substantive effect would be the same.
71 The applicant emphasised, and it was not disputed, that Ryan J had, in ordering the determination of separate questions, envisaged that there could be an appeal from the answers. So much was freely conceded by the respondents. Counsel for the first respondent acknowledged that the questions were central and had been drafted specifically in order to elicit answers which would be dispositive of the proceeding. An agreed statement of facts was also contemplated, but was never produced.
72 It became clear that the respondents' opposition to leave to appeal from the answers to the separate questions was largely based on their apprehension that the hope of obtaining dispositive answers had not been realised, given that the applicant had maintained that the answers were not dispositive and remained entitled to seek to rely on the FASOC or an alternative proposed pleading. Further, Tracey J had expressed reservations about whether answers to the separate questions would achieve their intended goal.
73 The applicant's concession at the hearing that no fundamentally different pleading could be produced and the undisputed likelihood that leave to rely on the FASOC, or any substantially similar pleading, would be refused, disposed of a fundamental impediment to leave to appeal. The practical problem of a "moveable feast" was eliminated.
74 The ordering of determination of separate questions was, not, in my opinion, beyond power or erroneous. The application for leave to appeal did not relate to Ryan J's orders. Any challenge to the validity of Ryan J's orders on the form of the questions should have been made at an earlier stage. Further, the material before the court indicated that the applicant, initially at least, did not oppose the determination of separate questions, albeit he subsequently pressed for the alternative course sought in the notice of motion referred to in Mr Waters' affidavit.
75 In my view, the order for the determination of the questions fell within the scope of O 29 r 1 of the Federal Court Rules, as the questions were raised by the pleadings or otherwise questions in the proceeding. As a controversy framed by the pleading on which the applicant sought to rely in the proceeding, they were within the scope of the matter before the court.
76 Nevertheless, I was persuaded that a refusal of leave to appeal could result in substantial injustice to the applicant and inconvenience to all parties and the Court. The answers, as a matter of substance, could, in all the circumstances, be tantamount to the dismissal of the proceeding. The adoption of the separate question procedure envisaged an appeal from the answers, and absent leave to appeal, may have placed the applicant in a worse position than if the hearing of the application for leave to rely on the FASOC had proceeded. It may have imposed a higher hurdle to resisting the effective dismissal of the proceeding, than would otherwise have applied. A different test (potentially less onerous for the applicant than in the present leave application) would have applied. In a strike out application, the respondents would have been required to establish that the FASOC failed to disclose a reasonable cause of action, and, save in a very clear case, strike out would not be justified.
77 In contrast, under the procedure adopted in this case, the learned judge addressed and determined competing arguments. His Honour was not required to, and did not, express a view as to whether it was "plain and obvious" that the FASOC raised no reasonable cause of action.
78 It was common ground that if his Honour were now required to determine an application for leave to rely on the FASOC (or any other pleading which depended on allegations in conflict with or contrary to the answers) independently of objections on other grounds, such as lack of clarity, leave would very probably, if not inevitably, be refused.
79 There was thus a likelihood that if leave to appeal from the answers to the separate questions were denied, the applicant would be refused leave to rely on the FASOC and an application for leave to appeal from that decision which would significantly, but not entirely, replicate the present application would then be made. The validity of the answers to the separate questions, while not, perhaps, as central to an application for leave to appeal from a refusal of leave to rely on the FASOC as it is to the present application, would still be highly relevant.
80 In addition to rendering almost inevitable a very similar, if not identical leave application, which would be wasteful of the resources of the parties and the Court, the refusal of leave to appeal from the answers to the separate questions could, on some contingencies, create problematic outcomes. If, for example, leave to appeal from a refusal to permit the applicant to rely on the FASOC were granted, subsequent remittal to the primary judge may be inappropriate, given his Honour's answers, which are adverse to the applicant's fundamental case.
81 The legislation relevant to the determination of the answers was complex and voluminous. Elements at least of the applicant's case were, as counsel for the first respondent acknowledged, arguable. While the applicant's criticisms of the primary judge's reasons did not appear compelling, the relevant legislation was complex and voluminous and elements, at least, of his case were, as counsel for the first respondent acknowledged, arguable. I was satisfied that substantial injustice was established. The answers to the questions effectively disposed of the proceeding, or the principal elements thereof, adversely to the applicant. Further, appeal was expressly contemplated when the procedure was adopted and the applicant may have been disadvantaged by its adoption if refused leave. A refusal of leave was also likely to lead to a repeat, in substance, of the present application, not only wasting the parties' and the Court's resources, but potentially producing significant anomalies and complexities.
82 In such circumstances, when it became clear that the applicant would not seek to amend the FASOC, a very slight degree of doubt sufficed to satisfy the first element of the test in Décor v Dart. Accordingly, I considered it appropriate to grant leave on the basis described above.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.