Black Star Pastry Pty Ltd v Richards [2025] FCA 1421

1. This is an interlocutory application by the respondent seeking an order that the application for leave to appeal be heard separately and ahead of any appeal or cross appeal.
2. The interlocutory application was dismissed at the hearing earlier today with costs, and orders were made which were otherwise not the subject of any serious dispute.
3. These are my reasons for making those orders.
4. It was common ground that the judgment that the applicant seeks to appeal is, in effect, final and is only categorised as interlocutory because an issue of quantum remains for determination below. It was also common ground that, if leave to appeal was refused, the applicant would be denied any opportunity to challenge the primary judge's findings on liability.
5. These are compelling factors which prima facie support the grant of leave to appeal, and which tell against making the order sought by the interlocutory application.
6. A combined hearing on the question of leave and the appeal will minimise the costs to the parties as they will only have one further hearing (being a combined hearing of the leave application and any appeal) and it will lead to one judgment being delivered, instead of two judgments (at least potentially, being one on the leave application, and one on any appeal).
7. Further, as the respondent accepts, it is not unusual for the Full Court to consider applications for leave to appeal and appeals in the same hearing.
8. The respondent submits that he will suffer injustice if there is a combined hearing as he wishes to raise arguments about the procedural history between the parties prior to their litigation in the Federal Circuit and Family Court (Division 2), which he contends are relevant to the leave application but not the appeal. However, as conceded by the applicant, such arguments may still be advanced by the respondent.
9. For that purpose, I will allow two hearing days for the hearing of the application and appeal, and permit the parties to file outlines of submissions of 15 pages, instead of 10 pages. In that way, the respondent will not be prevented from advancing the submissions concerning procedural history.
10. As matters transpired, the interlocutory application by the respondent was hard fought, with affidavits and submissions being filed, and counsel appearing on both sides. No good reason was advanced by the respondent as to why the costs of the application should not follow the event.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.