Associated Pool Builders Pty Ltd v Wickham [1989] FCA 187

2 the matter be adjourned to the Registry to be brought on by any party to the proceedings upon

Sis the costs of and incidental to today's proceedings be reserved."

In the matter, the applicant had sought relief against a number of respondents, but in the events which had happened, the hearing proceeded against three respondents only, namely Associated Pool Builders Pty. Ltd., Geoffrey James Ramsay and Halhapin Pty. Ltd. The claims were based

upon breaches of the Trade Practices Act 1974 and also on

passing off. There was a cross claim brought by Associated Pool Builders Pty. Ltd. based upon breach of contract. The claims and the cross-claim arose out of the use by the respondents of the name Tracey Wickham in relation to swimming pools to be erected in association with houses or other buildings. The reasons for judgment set out at some length the findings of the trial Judge, but it appears to have been agreed between the parties that the question of liability of the respondents would be determined as a preliminary issue and that after those issues had been determined, the matter would come back before the trial Judge

to determine the remaining matters which were unresolved.

The respondents to the matter, by notice of appeal dated 13 October 1988, appealed from the whole of the judgment of the trial Judge. It is quite clear that the orders made were interlocutory orders and that no appeal lay except with the leave of the Court. The question of leave of

the Court to appeal was raised at a directions hearing in

relation to the appeal, and it appears from the transcript that, at that stage, the appellants did not seek leave to appeal from the Judge taking the directions. Under the

relevant legislation, both in the Federal Court of Australia

Act 1976 and the Federal Court Rules, a proposed appellant has an option of either applying to a single Judge for leave to appeal from an interlocutory order, or applying to a Full Court for leave to appeal in relation to an interlocutory order, and these are mutually exclusive courses that can be taken. Despite the fact that this question was raised, at no stage did the appellants seek leave to appeal from the interlocutory orders made by the trial Judge on 23 September 1988. At one stage, the respondent to the appeal, Tracey Lee Wickham, applied to the Court for leave to cross appeal out of time, and leave was granted to do so and it was at this hearing that the question of leave to appeal was raised but

There is a provision in 0.52, r.18 of the Federal Court Rules that a respondent may move on notice for an order dismissing an appeal as incompetent, and there are consequences as to costs if such a course is not taken. Here

the respondent to the appeal did not exercise the right conferred by that rule.

When the matter came on for hearing today, the Court raised the question of whether leave to appeal should be granted. No final decision was made at that stage but the

appellants were permitted to proceed with the appeal. It

became obvious that difficulties arose because of the nature of the minutes of order which had been made when compared with the reasons for judgment which were published. Questions arose as to against whom were the orders to be made, namely, "that the applicant has made out breaches of

section 52 and 53(c) of the Trade Practices Act 1974". There

were three respondents at that stage, and prima facie, they were the three respondents who were in breach of those two sections. Nice questions arise as to what flowed from that, but these are really matters for consideration as to what remedies should be granted; whether injunctions or damages or both. But this applies particularly with regard to the respondent, Halhapin Pty. Ltd. That company has registered the name of "Tracey Wickham Pools Southside" and in its defence, it admits that it is trading under that name, but there seems to be a small amount of evidence only on this issue. This is one of the matters which will need to be determined by the trial Judge when the matter goes back to him to complete the matters in which the interlocutory orders of 23 September 1988 form part. There is nothing, apparently, in the reasons for judgment dealing with that

Further, the reasons for judgment do not deal at all with the question of the cross-claim by Associated Pool Builders Pty. Ltd. dealing with its claim for breach of contract against Tracey Lee Wickham. That is another matter

which will need to be dealt with by the trial Judge when the

It may well be that these matters are implicit in what has been said in the reasons and the minutes of order, but the trial Judge will need to consider those matters also. It is also necessary to determine, in due course, what

In all the circumstances of this case, I find it impossible to determine just what orders are the subject of appeal. It has been said that, although the minutes of order make no reference to the claim by the applicant for damages based upon the action of passing off, the reasons for judgment seem to make it clear that that claim was not proved by the applicant. Likewise, although the minutes of order make no reference to the claim based upon paragraph 53(b) of

the Trade Practices Act, the reasons for judgment seem to

suggest that that claim failed also. But these will be matters necessary for the trial Judge to clarify in due course. As I said, I can see no reason in this case why leave to appeal should be granted. It is impossible to determine just what are the orders sought to be challenged

and what matters were covered by the minutes of order.

It is quite clear that interlocutory orders were made and in those circumstances, in my opinion, the matter should be brought on for hearing again as soon as possible before the trial Judge. At a directions hearing directions

can be given as to the future conduct of this action. The

matter has dragged on for an extremely long time and should

be determined as speedily as possible, but this can only be done by the trial Judge and not by the intervention of a Full Court at this stage.

The question of costs becomes important. Normally, in a case of this kind, the proposed appellants, having failed to obtain leave to appeal, should pay the respondents costs of appeal. As opposed to that, the respondent did not

move the Court under 0.52, r.18, on the basis of lack of competency, and normally if that is not done, the respondent has to pay the costs. The respondent did apply to the Court for leave to cross appeal and from what occurred on that occasion, it should have been apparent to the respondent that

questions of leave to appeal was relevant and had to be

appeal and order that the appellants pay two-thirds of the

I certify that this and the Six preceding pages are a true copy of the reasons for