Australian Broadcasting Tribunal v Bond

2. The time for service of this notice of motion upon the applicants be abridged.

3. The costs of this application be costs in the proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA No NG 29 of 1991 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN: GRAHAM DOUGLAS COCKERILL, ARTHUR DAVID THOMAS DINGLE and VALERIE DINGLE Applicants AND: WESTPAC BANKING CORPORATION Respondent CORAM: Drummond J DATE: 7 April 1997 PLACE: Brisbane REASONS FOR JUDGMENT

The respondent in the action seeks leave to appeal the judgment of a judge of the Court.

The judgment resolved an issue in the litigation brought by the applicants to recover damages and other relief from the respondent because of, inter alia, the respondent's allegedly misleading conduct in respect of a foreign currency loan it made to the applicants in 1984. The issue so determined was whether the applicants had, in February 1988, for good consideration, released the respondent from all liability to them in respect of the claims set up in their action. I ordered that issue be determined separately from the numerous other issues in the action pursuant to O 29 r 2 the Federal Court Rules. The learned primary judge's judgment on the issue was therefore interlocutory. Hence the need for leave to appeal.

Although the judgment is in form interlocutory, it involved the determination of substantive rights, a consideration which favours the grant of leave: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400, where the approach the Court should take to applications for leave to appeal interlocutory judgments is discussed. If the judgment stands, the applicants will be free to press on with their action. If, however, the judgment is incorrect and is overturned on appeal, that will obviate a lengthy trial of the outstanding issues.

The applicants did not appear on the hearing of the notice of motion but, by their solicitor's letter, indicated that their attitude to the application for leave was that they would not "actively oppose the granting of leave to appeal from the interlocutory decision". The applicants may well have been motivated in adopting this position by not wanting to run further complex litigation if, at the end of the day, the respondent ultimately succeeds on an appeal that vindicates its claim that the applicants did release it in February 1988 from all liability to them. In any event, their attitude is also relevant as a consideration that favours the grant of leave.

As Decor shows, the test for determining whether leave to appeal an interlocutory judgment should be granted is, prima facie, a two-part one, although it is necessary, in an appropriate case, to have regard to other considerations as well.

I have taken into account the proposed notice of appeal and the respondent's submissions and am satisfied that the respondent has a case sufficiently arguable to satisfy the first of the two limbs of the prima facie test. The second limb of this test is also, in my opinion, satisfied, given that the judgment determined substantive rights and that, if leave is refused but the judgment is wrong, the respondent will suffer the injustice of having to participate in further, but unnecessary, complex litigation. I also take into account the applicants' attitude to the grant of leave.

Counsel for the respondent submitted that, if its application for leave is now refused, it will forever be shut out from challenging the primary judge's decision. If that were correct, it would be powerful justification for requiring the grant of the leave sought, given the nature of the determination sought to be challenged. In making this submission, counsel referred to Thai v Deputy Commissioner of Taxation (1994) 123 ALR 570 at 578-579. That case involved an appeal as of right against a sequestration order and an application for leave to appeal a decision on a preliminary question given prior to the hearing in which the sequestration order was made. The Full Court said:

"With one possible qualification, to be mentioned shortly, unless leave is granted, Mr Thai will never have the opportunity to test the correctness of the decision of Davies J before a Full Federal Court, notwithstanding the practical significance of that decision from Mr Thai's standpoint. Fairness and justice require that leave be granted."

The decision of Davies J on the preliminary question established that Thai owed the petitioning creditor the debt necessary to found the sequestration order that was ultimately made. Different issues were litigated in the later hearing, at the end of which the sequestration order was made. The qualification the Full Court referred to involved recognition that it might have been open to Thai in his appeal as of right against the final judgment, ie, the sequestration order, to show that that final judgment was wrong, by challenging the correctness of the determination on the separate issue. The Court found it unnecessary to pursue this matter, since it granted the leave sought. The Court ultimately dismissed the appeal against the interlocutory judgment but granted the appeal against the sequestration order, the making of which was attacked on the grounds of lack of procedural fairness.

Although it is unnecessary for me to determine this question since I intend to grant the leave sought, the position would seem to be governed by s 28(4) the Federal Court of Australia Act 1976 (Cth). If an application for leave to appeal an interlocutory judgment is refused, that interlocutory judgment is, I think, one "from which there has been no appeal" within the meaning of that expression in the sub-section and the Court, in dealing with the appeal from the final judgment disposing of the litigation, can correct any error made in the course of an interlocutory determination, provided that error infects the final judgment. The position is analogous to that discussed by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338. That this may well be the position cannot be affected by the rule, established by cases such as Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 79 ALR 171, that, if an application for leave to appeal an interlocutory judgment is brought before a single judge and refused, no appeal against the refusal of leave lies to the Full Court.

I will therefore make orders in terms of paragraphs 1, 4 and 5 of the notice of motion.

I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Justice Drummond. Associate:

Date: 7 April 1997 Counsel for the respondent: R N Chesterman QC and J C Sheahan Solicitor for the respondent: Allen Allen & Hemsley Date of hearing: 4 April 1997