Australian Energy Ltd v Lennard Oil NL

6. The order made on 16 January 1998 that Yates Property Corporation Pty Ltd provides security for the payment of the costs of these appeals be discharged in so far as it relates to the first and third respondents.

2. These orders are not to be entered before the expiry of fourteen days.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: JOHN BOLAND (as representative of Abbott Tout Russell Kennedy Solicitors)

JUDGES: DRUMMOND j (brisbane), SUNDBERG & FINKELSTEIN JJ (melbourne)

WHERE MADE: BRISBANE & MELBOURNE (via VIDEO LINK)

1. Pursuant to O 35 r 7(3) the Federal Court Rules, orders 2, 3 and 6 made on 5 August 1998 and entered on 12 August 1998 in respect of appeals number NG 495 of 1997, NG 716 of 1997 and NG 717 of 1997 be varied so as to be in the form set out below:

2. The order made by Branson J on 5 June 1997 in so far as it relates to the first and third respondents be set aside and in lieu thereof it be ordered that the proceedings be remitted to another judge of the Court for the assessment of damages against the first and third respondents.
3. The orders made by Branson J on 14 August 1997 against Yates Property Corporation Pty Ltd in favour of the first and third respondents and all the orders made in respect of Ian Francis Yates be set aside.

6. The order made on 16 January 1998 that Yates Property Corporation Pty Ltd provides security for the payment of the costs of these appeals be discharged in so far as it relates to the first and third respondents.

2. These orders are not to be entered before the expiry of fourteen days.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: JOHN BOLAND (as representative of Abbott Tout Russell Kennedy Solicitors)

AND: JOHN BOLAND (as representative of Abbott Tout Russell Kennedy Solicitors)

JUDGES: DRUMMOND j (brisbane), SUNDBERG & FINKELSTEIN JJ (melbourne)

DRUMMOND J: The Court has before it a motion by the second respondent in the action for orders varying certain of the orders made by the Court on 5 August last, which orders were perfected a little while later.

Complaint is made that the second order the Court made on 5 August needs correction to make it clear that it does not touch the second respondent and operates only between the appellants and the first and third respondents to the appeal (who were the first and third respondents in the action).

In my opinion, the second order of 5 August 1998 is expressed to operate in all respects only as between the appellant, Yates Property Corporation, and the first and third respondents. It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, ie, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Queensland Supreme Court, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made. The case for referring to the reasons for an order where there is any suggestion that the order may be expressed in unclear terms is a fortiori. Reference to the reasons for making this order puts it beyond doubt that this order can only be read as operating in the way I have mentioned.

Much the same unjustified complaint is made in relation to the sixth order made on 5 August 1998 as is made about this second order.

For myself, I do not attach any weight to the expressions of concern, particularly those recorded in the voluminous correspondence passing between the solicitors, about the alleged uncertainty of these two orders, and I would not be minded to grant the relief sought. However, all the parties are apparently agreed that certain insertions should be made to both, it is said for the purpose of making it quite clear what is the intended operation of these two orders. Solely because the parties are in agreement in relation to the second and sixth orders, I would be prepared to make the variations incorporated in pars 1(b) and (f) of the notice of motion.

The only other order the subject of complaint is the third order made on 5 August 1998. The complaints made here to the effect that, in terms, it affects the second respondent when it should only properly operate as between the appellant and the first and third respondents, are well-founded. The last sentence of the CourtÕs reasons given on 5 August 1998, in which it was said that the second respondent was exposed to a potential liability in respect of the costs of the appellant for the trial, was made overlooking at that time the fact that there was no appeal against the costs orders made by the learned primary judge in the second respondentÕs favour. The case, in my opinion, is a clear one for the invocation of O 35 r 7(3). The order which I would therefore make here is in the terms sought in par 1(c) of the notice of motion.

SUNDBERG J: I would grant the same relief as the presiding judge, for the reasons he has given.

FINKELSTEIN J: I also agree that the orders should be varied in the manner suggested by the learned presiding judge, for the reasons that he has given.

DRUMMOND J: The order of the Court will be in terms of par 1(b), (c) and (f) of the notice of motion.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Sundberg and Finkelstein.

Solicitor for the First Appellant: Bruce & Stewart

Solicitor for the First Respondent: Minter Ellison

Counsel for the Second Respondent: JLB Allsop SC and PR Whitford

Solicitor for the Second Respondent: Corrs Chambers Westgarth

Solicitor for the Third Respondent: Moray & Agnew

Date of Hearing: 30 November 1998

Date of Judgment: 30 November 1998