Determination
21In our view, the permanent stay the primary judge ordered was grounded on the same basis, insofar as Jacisa at least is concerned, as the perpetual stay granted in Anshun (No 1). This was that the second Supreme Court proceedings were an abuse of process because they sought to agitate issues which had been raised in the first Supreme Court proceedings in respect of which there was a Consent Judgment in Jacisa's favour. Accordingly, prima facie, insofar as Jacisa is concerned the appellant had an appeal as of right from that decision and exercised his right to so appeal, as I have said, within the time limited by the rules. On an appeal from a final order an appellate court can correct any interlocutory order which affected the final result: Gerlach v Clifton Bricks Ltd [2002] HCA 22; (2002) 209 CLR 478 (at [6]). The primary judge's order dismissing the applicant's motions to set aside the consent judgment clearly falls into that category as "it is theoretically open to the [applicant] to make another application for the same relief as that disposed of by the order sought to be challenged, even if any later application would as a practical matter 'be doomed to failure' ": Bracks v Smyth-Kirk (at [20]). However the observations in Re Luck were clearly seriously considered dicta (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [134])) and, against the possibility that the Re Luck position should be preferred, it is appropriate, in our view, at least to grant the applicant leave to appeal. It will, however, be necessary on the appeal for the Court to determine whether leave to appeal was required when dealing with questions of costs.
22Insofar as Mr Casseldon submits that Mr Habkouk's case falls into a different category, it should be observed that appeals are from orders, not reasons. The primary judge did not make an order that the statement of claim in the second Supreme Court proceedings should be struck out but, rather, only one that they should be permanently stayed. Although his Honour did not refer to this proposition, it is conceivable that he ordered that stay in Mr Habkouk's favour on the basis that the second Supreme Court proceedings fell into that category of an abuse of process which would arise if, "... the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ...": Reichel v Magrath (1889) 14 App Cas 665 (at 668) per Lord Halsbury LC. Non-parties to previous proceedings can rely upon that principle: Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 per Handley JA (Mason P and Heydon JA agreeing). If that is the case, Mr Habkouk's case is also in the Anshun (No 1) category.
23Prima facie, however, the apparent reason for the order permanent stay in Mr Habkouk's favour is the incoherence of the statement of claim which, as we have said, would place the order, insofar as Mr Habkouk is concerned, into the interlocutory category. However the primary judge does not appear to have given any consideration to whether the applicant should have an opportunity to replead his case insofar as Mr Habkouk. Such an order is often made when a strikeout order is appropriate on pleading grounds. There is an element of circularity involved because it is possible the reason his Honour considered such an order was not warranted was because of the abuse of process issue referred to in [22]. It is appropriate, in our view, in such circumstances, to apply the approach we have taken to Jacisa and also give the applicant leave to appeal from the permanent stay order insofar as it benefits Mr Habkouk.
24The respondents did not move on their competency motions, no doubt because the underlying premise, as is apparent, was not present if Anshun (No 1) was binding.
25It is to be hoped that the papers in the White Book can be used as the appeal papers supplemented to the least extent possible, but at least by the inclusion of the pleadings in both the first and second Supreme Court proceedings.
26Accordingly, we make the following orders:
- Grant leave to appeal.
- Applicant to file and serve the notice of appeal confined to grounds two to four in the draft notice of appeal in the White Book within 14 days of this judgment.
- Reserve the costs of the application for leave to appeal and the competency notices of motion.
- Stand the matter into the next call-over before the Registrar of the Court of Appeal with a view to consideration being given to minimising the costs of preparation of appeal books.