THE INJUSTICE CONSIDERATION
21 The respondent to this application submitted that no examination of the merits of the prospective appeal was necessary because it was manifestly clear that the application should be dismissed due to the absence of any demonstrable injustice if leave were refused.
22 Allphones contends that while the decision is interlocutory in nature (and if it were not, leave would not be necessary) it is substantive in character and not a mere matter of practice and procedure. Allphones argues that the decision has serious implications for the parties, in particular, Allphones. In short, if it is allowed to stand, Allphones will be required to respond to an action brought on behalf of 35 group members rather than ten (although those numbers appear to change a little from time to time). It would be impracticable in my view, to descend to detailed evidence as to the additional cost which will be occasioned by the nature of the amendment. It would be self-evident that there would be additional complexity and associated costs occasioned for the proceeding. Although there is no specific evidence on the point, it was argued that the additional complexity and additional costs involved in a hearing which is listed for trial in December, may in turn give rise to prejudice at trial. It is argued that substantial injustice will result to Allphones if there is no appeal against the decision and the decision is wrong as it will then be obliged to defend more complex, protracted and expensive proceedings and arguably without any subsequent right to re-agitate the question of the nature of the 'claim' but in circumstances where any judgment against it will have uncertain consequences for its potential future dealings with franchisees.
23 Allphones also contends and in my view, correctly, that having regard to efficiency and economy it would be inappropriate for the Court at first instance to require further argument if it is satisfied on the papers that the appeal cannot be said to be obviously unmeritorious and that the proposed appeal raises grounds of substance worthy of consideration by the Full Court.
24 Finally, Allphones contends that the application for leave to appeal and the appeal proper should be the subject of expedition. It undertakes to do all that is necessary on its part to achieve expedition. In that context, it points to the listing of the matter for trial in December and suggests that an appeal, if leave were granted, could at least theoretically be heard this month.
25 The respondent to the motion focussed predominately on the absence of irreparable harm citing Auspine Ltd v H S Lawrence & Son Pty Ltd & Anor [1998] FCA 953in which it was said that whether a litigant will suffer substantial injustice as a consequence of an interlocutory decision is a question of whether 'irreparable harm will be done to [the applicant] if the orders were allowed to stand or that [the applicant] will be prejudiced in an irremediable way in the manner in which [it] is able to conduct the trial'.
26 It is the second limb of that passage, however, on which Allphones relies. But the respondent contends that Allphones has failed to identify any relevant prejudice. In particular, it is argued that, as far as discovery is concerned, an obligation to give more extensive discovery than would otherwise be required cannot constitute a substantial injustice (Auspine per Goldberg J, (von Doussa and Mansfield JJ agreeing) at 5). Secondly, interrogatories or the putting of a standard set of questions formulated by Allphones to class members prior to trial would be an acceptable way of dealing with the position of individual class members and thirdly, that whether the parties are likely to incur any additional cost as a consequence of the position remaining unaltered requires a comparison of the likely additional costs of the trial proceeding with Group B remaining as a represented class with the costs of the proposed interlocutory appeal. There is no detailed evidence adduced in that regard by Allphones.
27 In Auspine the application was for leave to appeal from orders in which there was a dismissal of the respondents' motion that certain paragraphs of the applicant's amended statement of claim and formulation of damages be struck out. The Court observed that as the primary judge was exercising a discretion in considering whether the relevant paragraphs of the amended statement of claim should be struck out, the appellate Court was not to form its own view of the matter but rather to determine whether the discretion had miscarried.
28 The current application seems to me to be a case more in line with TS Production LLC v Drew Pictures Pty Ltd [2008] FCA 1329 where Heerey J referred to the Full Court the application for leave to appeal from an interlocutory judgment of Sundberg J allowing a stay of proceedings. His Honour observed (at [7]):
Order 52 r 2AA requires some ground to be shown why an application for leave to appeal should be determined by the Full Court. In my opinion such ground has been shown in the present case. This case cannot be characterised as a minor interlocutory squabble over discovery or the like. His Honour's orders result in important consequences for the parties, even though, as Mr Rebikoff for the respondents pointed out, they do not determine substantive rights.
29 It appears to me equally that this case cannot be characterised as a minor interlocutory squabble over discovery or the like and that the orders may result in important consequences for the parties even though they do not of themselves determine substantive rights.
30 In the present situation, the contention is that there is a potential risk of prejudice at trial because of the joinder of a substantial number of new applicants and the need to prepare for trial which will necessarily be of a different character from that which was scheduled prior to the amendment being permitted. The complaint as to the lack of specificity about either the additional cost or prejudice is understandable but equally, it would be very difficult to identify either of those factors in advance. It seems to me that the complaint as to substantial injustice has more force in this instance than in Auspine.
31 The amendment may raise a potentially significant cost burden in addition to prejudice. In TS Production LLC, Heerey J placed weight on the opportunity for the applicant to contest and possibly win the Australian proceeding without having to defend the more extensive United States proceeding. It may also have been that an issue estoppel was created. Similarly, in this case, it might be argued that the opportunity to contest the more confined proceedings rather than the representative proceedings, together with the rulings which might flow from the more confined proceedings would be of real benefit and being disentitled that opportunity may 'arguably amount[s] to real injustice' (Heerey J at [9]).