Computer Edge Pty Ltd v Apple Computer Inc.

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. NG 765 of 1994 BETWEEN: NATIONAL MUTUAL PROPERTY SERVICES (AUSTRALIA) PTY LIMITED First Applicant NATIONAL MUTUAL ASSETS MANAGEMENT LIMITED Second Applicant THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED Third Applicant THE PERSONS LISTED IN SCHEDULE 1 HERETO Fourth Applicant AND: CITIBANK SAVINGS LIMITED First Respondent LANCE KELLY FINANCIAL MANAGEMENT PTY LIMITED (IN LIQUIDATION) Second Respondent LANCE KELLY Third Respondent DENNIS JONES & COMPANY PTY LIMITED Fourth Respondent DENNIS JONES Fifth Respondent CORAM: Lehane J PLACE: Sydney DATE: 16 November 1995 EXTEMPORE REASONS FOR JUDGMENT LEHANE J: I have before me an application for leave to appeal from a judgment of Lindgren J resulting in certain orders which he made on 9 November 1995. The effect of those orders was to strike out certain pleadings without liberty to re-plead and consequentially to dismiss a number of claims made in the application. I shall not attempt to summarise the proceedings. They are very fully described in his Honour's judgment. It is perhaps sufficient to say that the relevant paragraphs of the application relate to his Honour's conclusions as to two matters, one being the rule against double satisfaction, the other being the validity or otherwise of certain assignments (whether regarded as legal assignments or as transactions which constituted persons entitled to certain claims trustees of those claims for the benefit of the first three applicants). In my view the decision of his Honour is properly to be characterised as an interlocutory decision, not a final decision. In my opinion it falls precisely within the test of what is an interlocutory as opposed to a final decision as enunciated by the High Court in Computer Edge Pty Ltd v Apple Computer Inc. (1984) 54 ALR 767 and accepted in this court in Miki Shoko Co Ltd v Merv Brown Pty Ltd [1988] ATPR 49,269. I appreciate that many extremely learned judges have in a number of cases metaphorically thrown up their hands and said that it is in many cases extremely difficult to distinguish between a final and an interlocutory judgment, and one therefore treads somewhat warily before one comes to a conclusion that a particular judgment is one or the other, at least in a doubtful case. In my view, an application of the test accepted in Miki Shoko clearly produces the result that what I have before me is an interlocutory, not a final decision. In my view the decision of Lindgren J in this case does not in the relevant sense finally decide the rights of the parties. It follows that if there is to be an appeal against his Honour's decision, leave of the Court is required and it is that leave which is now sought. There is, I believe, very little room for doubt as to the test which is to be applied. It has been considered in a number of decisions of this Court, including some to which I was referred this morning, of which perhaps the most relevant for present purposes is Decor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397. In general terms the test as it emerges from the authorities is twofold. One element of it is whether the decision sought to be appealed from is attended with sufficient doubt to justify the grant of leave, the other is whether substantial injustice would result if leave were refused. It is of course perfectly clear from the authorities that the test is not to be applied mechanically, nor is either limb of it to be applied in isolation from the other. A number of subsidiary points about the test are clear. One, and this is well established, is that the Court is reluctant to interfere with the conduct by a trial judge of a case or with so called case management. Another is that, by contrast with appeals on mere points of practice, so called, where a tight rein should be kept on appeals, leave will be more readily granted in the case of interlocutory decisions determining a substantive right: see, e.g., Decor at 400. I must now apply that test to the matter before me. It is true, at least in a sense, that the decision against which the applicants seek to appeal is one which deals with substantive rights. It is a decision which precludes them effectively, in the subsequent course of these proceedings, from relying on certain assignments (or perhaps one should say certain purported assignments) on which they seek to rely. In another sense, and one heavily relied upon naturally by Mr Epstein, his Honour's decision is not finally determinative of the substantive rights concerned, at least in the sense that following a final decision in the case by his Honour it will be open to the unsuccessful party to appeal: and in any appeal matters disposed of in interlocutory proceedings leading up to the final disposition of the matter can be re-agitated. That principle, Mr Epstein contended, is illustrated by the decision of the Court of Appeal of the Supreme Court of New South Wales in National Employers' Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 and the authorities cited in that case, particularly at page 231 in the judgment of Kirby P. I have during the adjournment considered a number of the authorities to which the President refers, or which were referred to in the authorities which the President mentions, and in my view Mr Epstein is right in contending that it would be open to an unsuccessful party in these proceedings to re‑agitate, on an appeal from a final judgment, matters - including those now under consideration - dealt with in interlocutory proceedings. That being so, the remaining question to be decided is a combined one: is his Honour's decision attended by a sufficient degree of doubt to justify leave, and will the applicant suffer serious injustice if leave is not granted?. The authorities tell us, and I must accept, that these matters cannot be considered in isolation. But it is impossible to deal with the matter, I believe, without giving them a degree of separate consideration. I embark upon a consideration of the degree of doubt which might attend his Honour's judgment with a considerable degree of diffidence. But I think I must embark upon such a consideration because it was argued this morning that his Honour, in deciding matters relevant to the orders complained of, applied a test appropriate to a final consideration of the issues in a final hearing, not the test appropriate to be applied in proceedings for striking out pleadings or for summary disposal of an action. I should state immediately that in my view it is abundantly clear that his Honour had in mind the test appropriate to be applied. To establish that that is so, one need I believe only to look at page 34 and the following pages of the judgment. I am quite unable to accept that, in considering the particular matters of which complaint is made, his Honour did not have the principles discussed on those pages very clearly in mind. Again during the adjournment I have re-read the relevant portion of his Honour's judgment which is, I believe, the portion of it commencing on page 52 and ending on page 65. I have come to the conclusion that, with respect, his Honour's decision on these matters is attended with very little doubt indeed. What his Honour has to say about double satisfaction really requires no comment by me, except to say that I find it very difficult to understand how what his Honour says could possibly not be right. As to assignment, it was put to me this morning that here his Honour has decided, inappropriately in what are in effect proceedings for summary dismissal, a matter of law which is "at the margin": that is one, where the authorities are in a state of flux and where it is impossible to say that there is any clear view yet commanding clear authoritative assent. The area of law concerned is the extent to which, if at all, it is possible validly to assign claims in tort and analogous claims such as, for example, claims arising under statute. But here it seems to me his Honour has made all necessary assumptions as to matters in controversy, or potentially so, in favour of the applicant. Particularly, his Honour has assumed that, given a genuine commercial interest, the Trendtex case (Trendtex Trading Corporation v Credit Suisse [1982] AC 679) applies to assignments of this sort as it does to assignments of contractual rights and that it is possible effectively to assign claims in tort or analogous claims arising under statute. His Honour then considers whether, on any view, the test of genuine commercial interest - and I do not believe that any authority suggests that some other test is applicable - is met. His Honour holds that it is not. It may be that some of the elements in his Honour's reasoning might be the subject of argument in due course in an appellate court. However, I believe that taken cumulatively, and having regard particularly to the arguments secondly and thirdly canvassed by his Honour, commencing on page 63 of the judgment, I cannot conclude that his Honour's reasoning or his conclusion, on this aspect of the case, is attended by a substantial element of doubt. It is in the light of that conclusion that I must consider the arguments that go to convenience because in my view, those arguments, which depend upon predictions as to the likely future course of this litigation, would have a great deal more force in circumstances where there was substantial doubt as to his Honour's reasoning than in circumstances where there is very little doubt indeed attending it. Given my conclusion that the applicants have finally lost no rights, in the sense that they have a right to appeal after a final decision is reached, I cannot see that they will suffer injustice substantial enough to outweigh the caution which the authorities enjoin me to exercise in an application of this sort. In my view, therefore, the conclusion would, but for one matter, follow that the application for leave to appeal should be refused. Towards the end of argument this morning a suggestion was made that if I were to reach that conclusion it might be appropriate to adjourn the motion rather than simply to dismiss it in case I should be wrong in thinking that after final judgment the applicants would be precluded from raising on appeal matters going to the issues of double satisfaction and assignment. Counsel for the first respondent indicated, I believe, that he would be prepared to consent to such an adjournment if the effect were to stand the motion over until final determination of the litigation by his Honour. What I am not certain about is whether standing it over in that way would strike counsel for the applicants as appropriate or advantageous. Before finally disposing of this motion, I shall hear counsel on that matter should they wish to make submissions on it. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane. Associate: Dated: 11 December 1995 Heard: 16 November 1995 Place: Sydney Decision: 16 November 1995

Appearances: Mr J T Gleeson of counsel instructed by Cutler Hughes & Harris appeared for the applicants. Mr S D Epstein of counsel instructed by Holmes & Bevan appeared for the first respondent. Mr I M Jackman of counsel instructed by Phillips Fox appeared for the second and third respondents.