Dai v Michael Roberts Strata Management Services Ltd

THE COURT: 1 Before the Court is a notice of motion by the respondent seeking the summary dismissal of an appeal. The appeal is purportedly brought as of right from a judgment of a single Judge of the Court which itself summarily dismissed the principal proceedings. 2 The history of the matter may be briefly stated. 3 The principal proceedings were commenced by application and supporting affidavit filed on 25 November 1999. It appears from the affidavit that the appellant was disputing aspects of the respondent's management of a strata title property. No statement of claim was filed by the appellant and, apart from the citation of several statutes in the application, no indication was given in the affidavit of the source of the Court's jurisdiction. The application cited, without more, many provisions of the Trade Practices Act 1974, the Crimes Act 1914, the Strata Schemes Management Act 1966 and "any other legislation" as the provisions on which reliance was placed to invoke the Court's jurisdiction. The appellant claimed "$3,000,000.00 in pecuniary penalties and other punishment". 4 When the matter first came before the primary Judge, his Honour directed that a statement of claim be filed and served by the appellant, and that the matter be re-listed for further directions on 22 March 2000. However, the appellant did not comply with the direction to file and serve a statement of claim and did not appear at the directions hearing on 22 March. In dismissing the application, his Honour said: "Given the great difficulties that I have with the application in its present form, the applicant's non-compliance with my direction to file and serve a statement of claim and the applicant's non-appearance this morning at the directions hearing, I propose to order under O 10, r 3(2) of the Federal Court Rules that the application be dismissed. As well, I order the applicant to pay the respondent's costs." 5 As mentioned, the appellant has filed a notice of appeal from the whole of the judgment of the primary Judge. The respondent has now filed a notice of motion seeking, inter alia, an order that the appeal be dismissed as incompetent pursuant to order 52 rule 18 of the Federal Court Rules. The respondent relies on the provisions of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) which provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave to appeal, and contends that the order dismissing the application is interlocutory and not final. We must decide first whether leave is required, and if so, whether leave should be granted. 6 The distinction between final and interlocutory orders was considered by the High Court of Australia in Hall v Nominal Defendant (1966) 117 CLR 423. Taylor J said (at 440): "So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory: Hind v Marquis of Hartington (1890) 6 TLR 267. The same view was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole (1891) 64 LT 703 and of an order dismissing an action as frivolous and vexatious in In re Page [1910] 1 Ch 489." 7 In our opinion, this reasoning is squarely applicable in the present case. It must follow that the orders made at first instance were interlocutory, so that by virtue of the provisions of s 24(1A) of the Federal Court of Australia Act, leave to appeal is required. The objection to competency is therefore upheld. 8 The tests for the grant or refusal of leave to appeal were explained in Decor Corp v Dart Industries (1991) 33 FCR 397. They are (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court and (2) whether substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong. 9 In our view, neither test is satisfied in the present case. In our opinion, none of the application or affidavits or other documents filed by the appellant discloses any cause of action that could be said to be reasonably arguable in a court of competent jurisdiction. Moreover, no reasonably arguable basis for invoking this Court's jurisdiction appears. 10 It must follow, in our view, that no proper ground for the grant of leave has been established. Leave to appeal ought to be refused, with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.