Commonwealth Savings Bank of Australia v. State Bank of New South Wales & Anor [1985] FCA 479

The decision of Lockhart J. was given in circumstances where the Chief Justice of Australia had remitted to this Court certain questions to be determined in a preliminary way.

Lockhart J. has given declarations determining a series of questions and made certain orders. A notice of appeal has been

filed and by this application expedition is now sought.

The respondents, the State Bank of New South Wales and the State of New South Wales, oppose the granting of the order for expedition. They point out that two matters remain yet to be

There is a motion for judgment listed for hearing before Lockhart J. on 22 and 23 October 1985. This relates to leave which had been granted by him to amend the defence of the Commonwealth Savings Bank of Australia by putting on a cross-claim in the nature of a set-off. It was suggested that

this had the result of preventing final judgment from flowing

This amendment was allowed by Lockhart J. on the basis that evidence showing a prima facie case would be filed. Evidence was in fact filed in accordance with this order. The current motion for judgment is brought upon the basis that the

evidence filed 1s not sufficient to substantiate the cause of action so as to warrant the cross-claim in the nature of set-off.

This motion for judgment will be opposed but it remains for

The second date in question is a date fixed by Lockhart g., namely, 2 December, as the date for the hearing by him of the

matters of fact still in dispute, having regard to the declarations and orders so far made. This means that a

substantial part of the evidence or issues originally in contest

between the parties have now been treated by Lockhart J. as, in effect, determined by his declarations and orders. In his view,

they will not be the subject of the hearing of 2 December 1985.

When one comes to the question of expediting the hearing of this appeal, it is a situation where there is a balance on both sides to be considered. It is obviously a very important and large case affecting the parties in important respects. It is one which normally, in the light of the issues involved, would call for the earliest practicable determination.

On the other hand, the situation, while the pleadings remain in their present state, is that even a determination on

the appeal would not finally dispose of the matter and, indeed, there might then be an application for special leave to the High

The Court is stretched in relation to making judges available for an extremely early hearing of this appeal, due to its current commitments. It would not be practicable to give a hearing which would lead to a judgment being given before the

In these circumstances, it appears to me that the order which I should make is to stand the appeal over to the call over,

which will be held towards the middle of December, for the

February sittings of the Full Court of this Court, rather than to

attempt to fixa date for this year. As I say, itis not

practicable to fix a date when the Court could provide a Full Court in circumstances where judgment could be delivered before 2

Should any fresh development take place which changes the balance in any way, the parties will be at liberty to apply for a change in that procedure and to ask for further

There is on foot a motion of incompetence put on by the State of New South Wales. I do not think, sitting as a single

judge, I am ina position to deal with that motion. It relates only to the, first two of the fairly numerous grounds of appeal in the notice of appeal. I think it should go over, to be heard in

conjunction with the appeal, so it will also be stood over at

this stage to the call over, subject to liberty to apply to keep

An application was made orally to me for leave to appeal upon the footing that there may not have been a right to appeal

against the declarations and orders since it may he considered that they were of an interlocutory nature. This is a difficult

area of the law. It has not been fully argued before me, although some argument has been advanced. No application for

Had the parties wished to have this matter fully disposed of at this stage, I would have been prepared to entertain it, as a single judge can in this court. However, I think that the convenient course now is for the application for

leave to be made to a Full Court and to be made at the same time, perhaps, aS the appeal itself is coming on. It is the type of case where a Full Court might well take the view that it would

hear both the appeal and the application for leave together.

Accordingly, this application for special leave - which has not been filed - is also stood over to the same date, to be

There is on foot a notice of motion by the State Bank of

New South Wales for an order that the hearing of any appeal against any judgment of Lockhart J. be stayed until a time convenient to the Court after judgment by his Honour on the remaining issues for trial, other than damages, and thereafter

any appeal or appeals be expedited. Tt 1s a double-barrelled

request. I think it unnecessary to make an order in those terms.

TI have rejected the application for an immediate expedition order of the appeal - not really on the basis that it does not deserve any expedition, but on the basis that the court is unable to afford it a hearing, and that the matter is complicated by the motion for hearing before Lockhart J. on 22

October, and the date for hearing on 2 December of the

sareat preceding page Reasons for Judgment herein of his Honour

outstanding matters. I think, in the interests of justice, it is undesirable to interfere with those dates. Accordingly, the

appeal has been stood over, but I would not be prepared to grant a stay against the hearing of the appeal or to lay down at this

Stage what date might be fixed for the hearing of the appeal.

I think a fair order would be to dismiss the motion for

expedition and the motion for a stay, but to order that the costs

Mr. Handley, you can have an extension of time to file

your application for leave until Friday, 20 September.