_Jessup v King's Transport & Ors_

Judgment (10 paragraphs)

[1]

This matter concerns a matter of practice and procedure. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177, Gibbs CJ, Aickin, Wilson and Brennan JJ said,

[2]

"Nor is there any serious dispute between the parties that Appellate Courts exercise particular caution in reviewing decisions pertaining to practice and procedure.

[3]

Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v Electronic Industries Ltd ([1978] VR 431 at 440); on the other hand, De Mestra v A D Hunter Pty Ltd ((1952) 77 WN (NSW) 143 at 146).

[4]

For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the often cited statement of Sir Frederick Jordan in In Re the Will of F B Gilbert (Dec) ((1946) [1946] NSWStRp 24; 46 SR (NSW) 318 at 323): 'I am of opinion that...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.'

[5]

See also, Brambles Holdings Ltd v Trade Practices Commission ((1979) [1979] FCA 80; 40 FLR 364 at 365); Dougherty v Chandler ((1946) [1946] NSWStRp 13; 46 SR (NSW) 370 at 374). It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration."

[6]

The considerations referred to in this passage explain and support the well established approach of this Court, whereby this Court will usually decline to entertain interlocutory appeals pursuant to s 118(3) of the District Court of Queensland Act which are not apt to achieve the correction of substantial prejudice to the applicant.

[7]

Because the order of the learned primary judge has not been shown to have resulted in substantial prejudice to the applicant which can be remedied only by this Court, the application for leave to appeal should be refused. In my view Mr Gillan should pay the plaintiff's costs of the application to be assessed on the standard basis.

[8]

THE PRESIDENT: The applicant has not demonstrated any proper reason for the granting of leave to appeal for the reasons given by Justice Keane. I agree with him that the application for leave should be refused with costs to be assessed on the standard basis.

[9]

DUTNEY J: I agree that the order should be as proposed by Justice Keane for the reasons which he has given.

[10]

THE PRESIDENT: That is the order of the Court. Thank you.

Mr Gillan now seeks leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). That leave will usually be granted only where the order below has caused substantial injustice to the applicant for leave and there are reasonable prospects that the injustice will be corrected on appeal. See Bonnici v. Taylor [2001] QCA 502 at [3] and Pickering v. McArthur [2005] QCA 249 at [3].

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Judgment (10 paragraphs)

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