ROUSE & ORS v IOOF AUSTRALIA

Rule 95.08 of the Supreme Court Rules provides:

"(1) A respondent my make an application at any time to the Full Court or a Judge for an order dismissing an appeal as incompetent. (2) Upon the hearing of the application, the burden of establishing the competence of the appeal is on the appellant."

Rule 95, of course, deals with appeals to the Full Court so it may be assumed that r95.08 gives jurisdiction to a single judge to entertain an application as to the competence of an appeal to the Full Court.

The defendant did not submit that I did not have jurisdiction to entertain this application. The jurisdiction of this Court is clearly wider than the jurisdiction in the Federal Court: D'Ortenzio v Telstra (1998) 83 FCR 154. The defendant did argue, however, that I should decline to exercise the jurisdiction because to assume the jurisdiction would be to circumvent or terminate the appellate process; Le Poidevin Industries Pty Ltd v Mid North Animal and Plant Control Board (Olsson J 13 November 1991 Judgment No. 3122).

In that case an application was made to Olsson J to dismiss as incompetent an appeal from a District Court Judge to the Full Court. It was argued that the grounds of appeal in the Notice of Appeal were ex facie without substance and the appeal should be struck out as being tantamount to an abuse of process. There was no doubt that an appeal lay from a decision of the District Court Judge to the Full Court. It was argued, however, that the appeal was doomed to fail.

"It may well be that, having regard to the material which was placed before the District Court and as referred to on the present file in this Court, the appeal filed by the appellant is likely to be fraught with considerable difficulty. However, that is essentially a matter for the Full Court itself when the matter comes on for hearing. It is not the prerogative of a single judge of this Court, in effect, to circumvent or terminate the appellate process unless it appears, on the face of it, the purported appeal is so defective in form or substance that it must be struck out as either failing to invoke the jurisdiction of the Full Court to pass upon it or as otherwise clearly a patent abuse of process."

30. His Honour then dismissed the application upon the basis that he could not come to either of the two views to which he referred.

"The appeal is, on the face of it, not incompetent within the meaning of SCR 95.08. To what extent it is likely to succeed on the merits is a quite different matter and one which is irrelevant in the application of the last mentioned rule."

It can be seen therefore that the matter before Olsson J was quite different to that which I am asked to consider. In the case before Olsson J the appeal could not be said to be incompetent because no appeal lay from the District Court Judge to the Full Court or that there was some procedural irregularity in the appeal itself. The argument before Olsson J was whether or not the appeal was likely to succeed. With respect, in the circumstances before his Honour I agree that it could only be in the most exceptional circumstances, if any, that a single Judge would dismiss an appeal which the Full Court had jurisdiction to hear.

That is not the case here as his Honour correctly, in my view, pointed out. Applications under r95.08 which are directed to competence per se are quite different.

It seems to me therefore that I have jurisdiction to hear this application and because this jurisdiction has been invoked I should decide it.

Appeals from decisions of judges and masters are governed by s50 of the Supreme Court Act. That section provides:

"50 (1) Subject to the rules of court an appeal shall lie to the Full Court against every judgment, including every declaratory judgment entered pursuant to section 30B of this Act and any final assessment made thereon, order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order: Provided that - (1) No appeal shall lie from - (a) an order allowing an extension of time to appeal from a judgment or order: (b) an order giving unconditional leave to defend an action: (c) any judgment or order which is by statute, or by agreement of the parties, final or without appeal. (2) No appeal shall lie without the leave of the judge from any order - (a) made by consent of the parties: (b) as to costs only which by law are left to the discretion of the judge. (3) No appeal shall lie without the leave of the judge or of the Full Court from - (a) any order upon appeal from a court of summary jurisdiction under the Justices Act, 1921; (b) any interlocutory order or interlocutory judgment except in the following cases, namely:- (i) Any order refusing unconditional leave to defend: (ii) Where the liberty of the subject or the custody of infants is concerned: (iii) Where an injunction or the appointment of a receiver is granted or refused: (iv) Any decision determining the claim of any creditor or the liability of any contributory or the liability of any director or other officer under the Companies Act, 1962, as amended, or under any corresponding previous enactment, in respect of misfeasance or otherwise: (v) The grant or refusal of a decree or order nisi in a matrimonial cause: (va) Any assessment of damages not being a final assessment made pursuant to section 30B of this Act. (vi) Such other cases to be prescribed by rules of court as are, in the opinion of the authority making such rules, of the nature of final decisions. (2) Subject to the rules of court, an appeal shall lie to a judge against a judgment, order, direction or decision of a master."

It was the plaintiffs' submission that this matter was governed by s50(3) of the proviso and that no appeal lay from my decision because the orders made were interlocutory and leave was required.

On the other hand the defendant argued that the orders made amounted to final orders but in the alternative if they were not final orders, paragraph 1 of my orders came within the exception to the proviso in s50(3)(b)(iii).

It would be logical to first determine whether this was a final or an interlocutory judgment.

The plaintiffs in these proceedings sought the appointment of a chartered accountant as an inspector of the defendant pursuant to s84C of the Trustee Act. They further sought an order that the inspector investigate the administration of trusts administered by the defendant and prepare a written report to the Court and to the Attorney General upon the results of the investigation.

The plaintiffs' later amended their pleadings to seek further remedies including orders that the defendant produce for inspection by the plaintiffs certain documents relating to the trusts the subject of the action.

The matter upon which the Chief Justice first ruled and which I have recently ruled arose out of the inadvertent leaving of documents by the plaintiffs' solicitors with the defendant, which, as I have found, were subject to legal professional privilege.

Mr Whitington QC argued that my order requiring the delivery up of the copies of those documents in the possession of the defendant's solicitors and of defendant's counsel amounted to a final order.

In my opinion that is not so. In my opinion, the order made by me is interlocutory in nature. It does not finally determine the issues or the rights of the parties; Licul v Corney [1976] HCA 6; (1976) 180 CLR 213.

Mr Whitington QC argued that my order finally disposed of the rights of the parties or at least the defendant's right to retain a copy of Exhibit LJH10. That is not so as a matter of fact. The Chief Justice's order, which was made by consent required the defendant to deliver up all copies of the LJH10.

In any event the test propounded by Mr Whitington is not the appropriate test. All interlocutory orders finally dispose of the rights of the party in relation to that interlocutory application. For example if a party is ordered to make discovery of a particular document that finally disposes of the party's rights in relation to that application. But that does not make the order a final order. Indeed an order directed to a non party to produce documents to the Court finally determines the non party's rights but is not a final order: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; Brouwer v Titan Corporation Ltd (1997) 73 FCR 241.

All orders are final in the sense that they dispose of the particular matter before them. There are many examples of orders which dispose of the particular matter before the court at the particular time. Indeed the particular matter now before me will finally decide the party's rights as to the competency or otherwise of this appeal. Such an order, however, is not a final order; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126.

It is not a question of whether the order disposes of the party's rights in respect of the application but as Mason J said in Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246 at 254:

"The issue then is whether the refusal of the appellant's application finally disposed of the action."

In my opinion this order is simply an interlocutory order in the nature of an order for discovery or for inspection or something of that kind. It is not a final order. It does not finally dispose of the party's rights. It certainly does not dispose of the action.

In my opinion, therefore, the orders which I have made on 31 March 1999 and 1 April 1999 were interlocutory orders. That being so no appeal lies from those orders without my leave or the leave of the Full Court, unless the orders which I have made contain an injunction: s50(3)(b)iii.

Mr Whitington argued that paragraph 1 of the orders made is a mandatory injunction in that it directs the defendant to deliver up to my Associate copies of Exhibit LJH10 not otherwise delivered up in accordance with the Chief Justice's order of 23 July 1998.

He argued that the plaintiffs, had by Mr Gray's oral application invoked the equitable jurisdiction of the Court to grant relief where there is an actual or threatened abuse by a party to misuse confidential information: Lord Ashburton v Pape (1913) 2 Ch. 469 at 475; John Fairfax & Son Ltd v The Commonwealth of Australia [1980] HCA 44; (1980) 147 CLR 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd & Another [1984] HCA 73; (1984) 156 CLR 414 per Deane J at 437.

Mr Gray QC argued that paragraph 1 of the order is not an injunction at all. It is only a direction for a party on an interlocutory application.

He argued that the order was not an injunction but an order directing the return of a specific chattel: Doulton Potteries Ltd v Bronotte & Another [1971] 1 NSWLR 591.

I do not agree with Mr Gray's proposition. I do not think that I was asked to exercise the jurisdiction referred to in Doulton Potteries v Bronotte & Another.

I agree with Mr Whitington that this Court does have equitable jurisdiction to prevent a party divulging confidential information which has came into that party's hands even when the divulging of that information would not involve "any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trademark right": Deane J at 438 Moorgate Tobacco Ltd v Philip Morns (supra).

However I do not agree that the plaintiffs invoked that jurisdiction. The jurisdiction I exercised derives from the inherent jurisdiction of the Court to regulate its own affairs and to regulate the proceedings before the Court and to prevent an abuse of its processes.

There are many orders which are mandatory in nature and binding upon a party which could not be said to be injunctions. For example, orders are commonly made requiring a party to file and deliver pleadings; to make discovery; to give inspection; and to answer interrogatories. All of those orders are mandatory in nature and can be enforced in due course with sanctions. None of the orders, however, would be described as injunctions.

"All court orders forbid or command one person to whom they are directed to do something, but not all court orders are injunctions. Legal usage alone, and not logic, decides which court orders can, and which cannot accurately be described as injunctions: Meagher, Gummow and Lehane Equity Doctrines and Remedies 3rd Ed. Butterworths 1992. Para. 2101."

An order directing a party to make available a document for inspection would not be said to be an injunction. A further order requiring a party to copy a document and to provide it to the opposing party would also not be an injunction. Indeed an order requiring a party to produce a document for inspection and copying by the Court would not be an injunction [Rule 59.0]. All of those are examples of adjectival or procedural orders commonly made in proceedings for the purpose of regulating the parties conduct in the proceedings.

Orders are commonly made requiring a non-party to make discovery, produce documents for inspection and to produce documents to the Court: r60. These orders are neither final orders (Brouwer v Titan Corporation Ltd (supra)) nor injunctions as the term is commonly understood and as the term is used in s50(3)(b)(iii) of the Supreme Court Act.

Orders of that kind are not injunctions. No undertaking is given as the price of the injunction. They are not drawn up as injunctions. They do not need to be served personally to have effect: r84.04(3). They do not have included in their terms the endorsement referred to in r84.04(3A). The orders will be enforced in their terms without compliance with r84.

In this case I have made an order requiring the defendant to deliver up all copies of the documents in the possession, custody or power of the defendant and its legal advisers not otherwise delivered up in accordance with the Chief Justice's order of 23 July 1998. As I have previously noticed the defendant did not have any copies of these documents in its possession apart from those to which I have referred, after the Chief Justice made his order on 23 July 1998. On reflection the order may be a little imprecise although nothing now turns on that because the order has been complied with.

The defendant had previously returned the original of these documents on 16 July 1998. It had also previously consented to the return of all copies save for the copies necessary for the purpose of the argument before me. The purpose of the argument before me was to determine whether or not the documents were subject to legal professional privilege. If they were not subject to legal professional privilege then the plaintiffs would have been under an obligation to discover the documents in the ordinary way and allow them to be inspected. If, on the other hand, they were subject to legal professional privilege, whilst the documents need to be discovered, they would not be made available for inspection. The difference in this case was that the defendant by its actions inspected the documents before there was a ruling upon the status of the documents.

This order arose out of a ruling on a question of legal professional privilege which had the effect of requiring a party to return a document to the opposing party because the document was confidential to the latter party. The orders I made requiring the defendant to return the documents to the Court were merely to protect the confidentiality of the documents having determined that they were still subject to legal professional privilege. It was an adjectival or procedural order made for the purpose of regulating the conduct of these parties within the action itself.

The order was not, in my opinion, in the nature of an injunction as that term is understood in s50 ss3(b)(iii) or in r68 of the Supreme Court Rules.

In my opinion, the orders made on 31 March 1999 and 1 April 1999 were not final nor was para 1 of the order an injunction.

In those circumstances the proviso of s50(1) of the Supreme Court Act applies and no appeal lies from those orders without leave of myself or the Full Court. The appeal, because leave has not been sought and obtained, is incompetent. The appropriate order where an appeal is brought to an intermediate court of appeal in circumstances where leave is required but not obtained is to dismiss the appeal as incompetent; Southern Cross Explorations NL & Ors v Fire & All Risks Insurance Co Ltd (No. 2) (1990) 21 NSWLR 200.

In those circumstances the order will be that the Notice of Appeal of 13 April 1999 is dismissed as incompetent.