Malouf v Malouf

Federal Court of Australia|1997-05-22|Before: Santow J, Einfeld J, Hely J, Dowsett JJ

INTRODUCTION 1 In an application for leave to appeal, a preliminary question has arisen whether leave is actually required , or whether an appeal lies as of right. 2 On 2 October 1998, Einfeld J dismissed an application by the applicant for pre-trial discovery under O 15A r 5. The applicant then sought an extension of time to lodge an appeal, presumably as of right, against that order. 3 An extension of time was granted by Hely J on 18 December 1998. In the course of his reasons, his Honour raised the question whether leave to appeal was required. That depends on whether an order under O 15A r 5 is interlocutory or final in nature. Pursuant to O 52 r 10(2)(b) his Honour also extended to 23 December 1998 the time for filing an application for leave to appeal. A notice of appeal and a motion seeking leave to appeal were filed on 23 December 1998. The motion was directed to be made returnable before a Full Court. 4 In order to understand the issues raised by the application, it will be necessary to say something more about the earlier proceedings.

PROCEEDINGS AT FIRST INSTANCE BEFORE EINFELD J 5 The application to Einfeld J arose in the following circumstances: 6 The first and second respondents are the brother and sister of the applicant. The third respondent, Osmal Holdings Pty Ltd, is a family company. Dispute between the parties goes back many years. This particular dispute involves the sale of shares in the family company by the applicant to the first and second respondents on 16 February 1995 for a sum exceeding one million dollars. The applicant alleges that he was induced to sell the shares on the basis of representations that the company would not be profitable in the near future and that the shares were therefore worth no more than the amount for which he sold them. 7 The applicant suspects that such representations were false. He contends that had he known the representations were false, he would not have sold his shares. He believes that the financial records of Osmal Products Pty Ltd (a subsidiary of Osmal Holdings Pty Ltd) from 1995 will prove his suspicion that the representations were false. Accordingly, the applicant sought discovery to him, of those financial records. 8 Order 15A r 6 permits discovery before action as follows: "RULE 6 - Discovery from Prospective Respondent 6 Where - (a) there is a reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;

(b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision - the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c)." 9 His Honour noted that the applicant bears the responsibility of placing himself within the terms of r 6 and then turned to the question of whether he had done so. 10 His Honour interpreted the first criterion in (a) to mean that there must be, by an objective judgment, reasonable cause to believe that the applicant for the discovery has or may have the right to bring a successful action in the Court against the person in control or custody of the documents concerned. That meant, his Honour said, that - "… its use is not determined by what an applicant for such documentation might think or hope or believe the documents might show, but that on the evidence there should be a reasonable prospect that an action could be revealed by the revelation of material in the possession of another but at present not available to the applicant making reasonable inquiries. … It thus may be necessary to look carefully at the evidenced material to ascertain whether the cause of action proposed is reasonably available or may be reasonably available or whether the seeking of pre-trial discovery is designed to harass or embarrass." 11 His Honour concluded, at 8, that the applicant did not fulfil the first criterion in r 6: "Correspondence and the language used by the applicant … suggests that he has been willing to throw around wild allegations and threats for years but do absolutely nothing about them. I think therefore that this case throws up a circumstance in which were the applicant a credible proponent of an action, or were an action to be otherwise credibly arguable, I would have had no doubt that the 1995 accounts should be made available. But on the material which has been presented, I can see for myself no reasonable basis for concluding that the applicant has, or may have, the right to obtain relief of the kind that he has put forward in this Court from any of the respondents, or even a genuine intent to try." 12 As for the second criterion, his Honour held that the applicant had not made "all reasonable inquiries" to ascertain the material he now seeks. Further, he held that the applicant was not presently deprived of sufficient information to enable a decision to be made as to whether to commence the proceeding which he proposes. 13 Upon the third criterion in r 6, his Honour had no doubt that the respondents would have access to the relevant accounts of the company. 14 Finally, his Honour stated that even if the above conclusions were all wrong, he would not be prepared to exercise a discretion in the applicant's favour that there should be pre-trial discovery, for the reason that the applicant has not been frank with the Court. 15 Accordingly, his Honour dismissed the application.

PROCEEDINGS BEFORE HELY J IN THE APPELLATE JURISDICTION 16 After the delivery of the ex tempore judgment of Einfeld J, the applicant made a number of inquiries as to the availability of transcript of his Honour's reasons for decision. Those reasons had still not become available by 19 November. The time for lodging an appeal from his Honour's decision expired on 23 October 1998. On 19 November 1998 an application was lodged for an extension of time in which to lodge a notice of appeal. 17 The application came before Hely J on 18 December 1998. By reference to evidence that the applicant had received advice from Senior Counsel that grounds of appeal were open to the applicant, Hely J held that an appeal would not be frivolous. His Honour accordingly granted an extension of time for lodging a notice of appeal until 23 December, but noted that a question could arise whether leave to appeal was needed.

(a) Final or interlocutory - the authorities 18 Pursuant to s 24(1) of the Federal Court of Australia Act 1976 an appeal lies from a judgment of a single Judge but, pursuant to subs (1A), in the case of an interlocutory judgment, only with leave of the Court or a Judge. The question is whether the decision of Einfeld J was interlocutory. 19 Similar questions have arisen in many contexts over the years. An appropriate starting point is the decision of the High Court in Hall v Nominal Defendant (1966) 117 CLR 423. That case concerned an application to extend time within which to sue the Nominal Defendant established pursuant to Tasmanian legislation. A judge at first instance granted the application, but that decision was reversed on appeal by the Full Court. From that decision, the prospective plaintiff purported to appeal as of right to the High Court, asking, alternatively, for leave or special leave to appeal. In determining the status of the purported appeal it was necessary to determine whether or not the order of the Full Court was interlocutory for the purposes of s 35(1) of the Judiciary Act 1903 as it then was, which provision was similar in effect to s 24(1A) of the Federal Court Act. The majority (Taylor, Windeyer & Owen JJ) considered that it was. At 439 - 440 Taylor J said (Owen J concurring): "However, at an earlier stage Lord Alverstone CJ, when called upon to say whether a particular order was interlocutory or final said: 'It seems to me that the real test for determining this question ought to be this: does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order'… Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. 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 process of the Court has been treated as interlocutory…. 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… and of an order dismissing an action as frivolous and vexatious… In Manley Estates Ltd v Benedek… there were successive applications to extend time under a provision similar to that in question here, whilst Atwood v Chichester… shows that an order dismissing an application to set aside a default judgment did not constitute a bar to a subsequent application of the same character. It is not, however, of the essence of an interlocutory order that it is one made in the course of a pending action or suit and the last mentioned case may be regarded as illustrating this proposition. Further, in Smith v Cowell… the objection taken was that the order sought in that case was not 'interlocutory' and the objection was supported by the contention 'that an order is interlocutory only if made at some time between writ and final judgment'. The contention was expressly rejected by the Court of Appeal which was unanimously of the opinion that the expression 'interlocutory order' was wide enough to include orders made after the conclusion of proceedings in the action. Brett LJ… said: '… But it is said that interlocutory must mean something between action begun and final judgment. I cannot agree. In my opinion, 'interlocutory order' there means an order other than a final judgment or decree in an action'. The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge at first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action. In my opinion, the order in question was not final in the sense in which that term is used in relation to judgments and was interlocutory only so that the appeal was, to say the least, incompetent without leave." 20 Windeyer J said at 444 - 445: "But I find it hard to relate the test of finality or otherwise in the determination of a dispute between parties to an application (of this kind), because in such a case there is an existing dispute between parties and no existing action, and unless the prescribed times be complied with or extended there is no cause of action it seems to me. There are no defined parties to the application… The court is required to hear 'such of the persons affected or likely to be affected by the application as it thinks fit'. If the times prescribed have expired at the date of the application the question is, should the applicant who is out of time for fulfilling a condition for obtaining a judgment against the nominal defendant be put in the position that he has a cause of action. The question is, in effect, whether he should be permitted to bring an action. A refusal of his application means that he cannot do so. I am prepared to assume that in practical effect, if not in strict law, a refusal would preclude him from making another application for an extension of time. But does this mean that such a refusal would be a final order? On the whole I think not. The question is a troublesome one; and I have found no analogy on which to base my decision. The position when there is an existing dispute between defined parties does not, I think, provide an analogy. There, as I have said, the cases show that the determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties - does it put an end to the existing dispute or existing action? But in a case such as this the character of the proceedings in which the order is made seems to me of more significance than is the result for the applicant. I am unable to accept the view that if an extension of time as sought were granted such an order would be a final order. It seems to me it would be interlocutory; and I think that the position is the same if the extension be refused or if a lesser time were allowed than was sought." 21 The HighCourt again considered the matter in Licul v Corney (1976) 180 CLR 213. The Court was concerned with an application to extend time for the service of summonses. A judge of the Victorian County Court made certain orders which, on appeal to the Full Court, were set aside. The plaintiff appealed to the High Court. The defendant objected to the competency of the appeal. At 219 - 220 Barwick CJ said: "The first question arising from the objection to the competency of the appeal to this Court is whether the order of the Supreme Court was a final order within the meaning and operation of s 35(1)(a) of the Judiciary Act 1903 (Cth) (as amended). To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action." 22 Gibbs J said at 225: "The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view… is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant…, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties." 23 In Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 the High Court considered an appeal from a decision of the New South Wales Court of Appeal determining an appeal from an order declining to set aside a judgment by default. At 248 Gibbs CJ said: "The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney… An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant… In practice, in some cases a second application of that kind might be successful, for example when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The applicants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one. In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal." 24 Mason J said at 256 - 257 with regard to the discretion to set aside a judgment: "… I can see no justification for arbitrarily imposing upon that discretion a rigid rule that the refusal of an application is a complete bar. The Court should preserve the generality of its discretion so as to protect its capacity to see that justice is done in a wide variety of cases. The question remains whether the refusal of an application amounts to a final order, when the practical effect of that order is to preclude the defendant from making another application to set aside the judgment, although in strict law the defendant is free to bring his application, knowing that it will inevitably fail. … The choice for the Court is whether it should continue to adopt the traditional classification of orders of this kind as interlocutory because there is the right to make another application and because the order does not deal directly with the rights in contest in the action or whether it should now classify such orders as final when their practical effect is to shut out the defendant from contesting the default judgment. Although the second alternative has some attractions, it has the disadvantage that the character of the order (whether it be final or interlocutory) could not be determined on its face, but could only be ascertained after an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the formation of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application. The adoption of this approach would bring yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court. The prospect that there could be a steady stream of appeals to this Court from orders on applications to set aside default judgments, if the character of a final order be conceded to them, is by no means an inviting prospect. Even so, I would not shrink from making that concession if it be correct in law so to do, in order to do justice to the parties. However, for the reasons already given, I do not consider it to be a correct approach. It goes without saying, that the unsuccessful party can, in an appropriate case, apply for and obtain special leave to appeal." 25 Sanofi v Parke Davis Ltd (1982) 149 CLR 147 was an appeal to the High Court from an order of the Full Court of this Court, granting leave to an applicant to file and serve a notice of appeal to the Full Court from a decision of the Supreme Court of Victoria in proceedings under the Patents Act 1952. The respondent lodged an objection to the competency of the appeal. At 152 - 153 Gibbs CJ, Stephen and Mason JJ said: "By s 33(4) of the Federal Court of Australia Act 1976 (Cth) as amended, an appeal to this Court may be brought as of right from a final judgment of a Full Court of the Federal Court … However, it is disputed that the judgment of the Full Court of the Federal Court was a final judgment. A final judgment is one which finally disposes of the rights of the parties: … It was not suggested that the order of the Federal Court in the present case finally disposed of the rights of the parties under s 90 of the Patents Act: obviously it did not. What was contended by Mr Lyons on behalf of Sanofi was that the order of the Federal Court finally determined that Parke Davis had a right to appeal to the Federal Court. The order proceeded on the basis that Parke Davis had a right to apply for leave to appeal, and that it was competent to the Federal Court to grant it leave to appeal. However, it was submitted that Parke Davis had no right to seek or obtain leave to appeal, since it had not been a party to the proceedings in the Supreme Court. It was submitted that a power of appealing is a right, and not a matter of mere procedure, and that the order of the Federal Court finally disposed of that right in the present case. There is, as Mr Handley for Parke Davis submitted, a short and conclusive answer to that contention. The Federal Court did no more than grant leave to file and serve a notice of appeal. It is always open to a court which has granted leave to appeal or special leave to appeal to rescind that grant if it later appears to the court, in the light of further information or argument, that the leave or special leave should not have been granted. … It is irrelevant whether or not it is likely that the Federal Court would make an order rescinding the grant of leave, since it is the legal force of the judgment in question, and not its practical effect, that has to be considered in determining whether or not the judgment is a final one … For those reasons the order of the Federal Court was interlocutory and there was no right of appeal from it to this Court." 26 These decisions of the High Court should provide a sufficient basis for determining the present question. However counsel have referred us to numerous other decisions which we have considered. We note that the Supreme Court of Victoria has treated orders pursuant to a similar provision as interlocutory. See The Herald and Weekly Times Ltd v The Guide Dog Owners and Friends Association [1990] VR 446 and Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd (unreported, Supreme Court, Court of Appeal, Vic, 22 May 1997; BC 9702240) per Winneke P, Hayne JA and Ashley AJA concurring. We have also considered a number of New South Wales decisions which appear consistently to have followed Hall. 27 Three cases in this Court require consideration. In Brouwer v Titan Corporation Ltd (1997) 73 FCR 241, the Full Court held that an order directed to a non-party for production of documents in pending proceedings is interlocutory in nature. Various authorities to similar effect were cited in the reasons for judgment. To these may be added another decision of this Court in Eatts v Dawson (1990) 21 FCR 166 per Morling, Gummow JJ at 169. 28 In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55, Lindgren J was asked to restrain a party to proceedings in this Court from exercising a right conferred by a United States statute to depose a potential witness for use in those proceedings. In the course of ruling on the admissibility of hearsay evidence pursuant to s 75 of the Evidence Act 1995, which permits hearsay evidence in interlocutory proceedings, his Honour concluded that as the proceedings were independent of the action and were for final relief, hearsay could not be used. 29 In Levis v McDonald (1997) 75 FCR 36, Lindgren J considered an application under O 15A r 3, which provides for oral examination of persons for the purpose of identifying appropriate parties to a proposed action. Again, a question arose as to the admissibility of hearsay evidence. At 43 his Honour said:

"Without reference to authority, I would have thought that an application for the relief provided for in O 15A, r 3 or O 4 r 17 is not an interlocutory proceeding, since the relief provided for finally determines the rights of the parties in relation to the particular issue tendered for decision, that is to say, the issue whether the person concerned is to be ordered to do the things provided for in the rule." 30 His Honour appears to have relied upon the decision of the High Court in John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 356. We doubt whether that case is of assistance. The High Court was there concerned with an application of the present kind, made in advance of action, for an order that a person identify a possible defendant in a proposed deformation action. The Court observed: "The respondent to an application under Pt 3 r 1 is not, as such, a defendant in a defamation action. Such an application is not an interlocutory proceeding in such an action." 31 The conclusion is undoubtedly correct, but as Hall (supra) demonstrates, that is not the only relevant consideration for present purposes. It is necessary also to consider the nature of the order made. 32 At 43 of Levis, Lindgren J said this: "It was submitted that the present proceeding is shown to be interlocutory by the fact that the making of the order sought is only a step on the way to the obtaining of the information. The submission is that the making of the order is not the end of this proceeding and that further orders may be necessary to enable Messrs Levis, Armstrong and Lee to enjoy the benefit of the orders sought, for example, orders compelling Mr Daly to answer questions or to produce documents. It seems to me, however, that this submission is analogous to a submission that an order for payment of damages or an injunction is not a final order because further orders may be necessary to enable the successful party to have the benefits of the order. I do not think that the order sought is any the less final because further orders may become necessary to compel compliance with it." 33 In both Allstate and Levis his Honour was concerned with the meaning of the term "interlocutory" for the purposes of the Evidence Act and not with the construction of the appellate provisions of the Federal Court Act. It has long been accepted that the terms "final" and "interlocutory" may mean different things in different contexts. See Salter Rex and Co v Ghosh [1971] 2 QB 597 at 600 - 601; Tampion v Anderson (1974) 48 ALJR 11 at 12 - 13; Wentworth v Wentworth (unreported, Supreme Court, NSW, Santow J, 17 April 1997) at 4. It is not difficult to find good reason for allowing relaxation of the hearsay rule in a narrower category of cases than that in which the right of appeal is truncated by a requirement for leave. The latter requirement merely places the parties in the hands of the Court. Relaxation of the hearsay rule may substantially affect the outcome of the proceedings or the way in which they are conducted. We note that Lindgren J was a member of the Full Court in Brouwer which distinguished Allstate. 34 In Ex parte Britt [1987] 1 Qd R 221, McPherson J (as his Honour then was) considered the admissibility of hearsay evidence on an application similar to that in Hall. The Queensland rules also allow hearsay in interlocutory applications. His Honour held, following Hall, that the proceedings were interlocutory. Whether thatdecision may be inconsistent with Allstate and Levis, and whether suchinconsistency may needto be resolved is unnecessary to consider. 35 As has been noted, in The Herald and Weekly Times, and in Mercantile Mutual, supra, two Victorian intermediate appellate courts have squarely decided the present point. As a matter of comity, we should be reluctant to disagree.

(b) The relevant principle 36 For present purposes, we need only consider Hall. That decision has been followed consistently in Australia and appears to be materially indistinguishable from the present case in that it involved an application in advance of the commencement of substantive proceedings. It establishes that for the purposes of determining whether there is an appeal as of right, itself dependent upon whether the decision in question was final or interlocutory, the test is whether or not the order in question precludes a further application. There is nothing in the rule currently under consideration which would preclude an applicant from making more than one application thereunder. No doubt, an application based on the same grounds as a previous application would be unsuccessful, but for the reasons advanced by the High Court, that is not relevant. The order is interlocutory. There is no appeal as of right.

(d) Orders 37 No argument was addressed to the merits of the application for leave to appeal. It will be directed that the motion be listed for hearing in the next sittings of the Full Court, the costs to date to be part of the costs of the motion. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 24 March 1999 Solicitor for the Applicant: Mr A Vrisakis

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