Re Western Australia v Bond Corporation Holdings Ltd; Wardley Australia Ltd; Lawrence Robert Connell, Wardley Australia Securities Ltd; Rothwells Ltd (In Liquidation) and James Phillip Yonge [1992] FCA 62 (25 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: STATE OF WESTERN AUSTRALIA
And: BOND CORPORATION HOLDINGS LTD; WARDLEY AUSTRALIA LTD; LAWRENCE ROBERT
CONNELL, WARDLEY AUSTRALIA SECURITIES LTD; ROTHWELLS LTD (In Liquidation) and
JAMES PHILLIP YONGE
Nos. WA G115, 116 and 118 of 1990
FED No. 76
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - leave to appeal - interlocutory judgment - principles - strike out motion - evaluative judgment on pleadings - no serious prejudice - motion for leave dismissed.

Trade Practices Act 1974 s.51A, s.52

Bomanite Pty Ltd v Slatex Corp. Aust. Pty Ltd (1991) 104 ALR 165

Wilson v Metaxas (1989) WAR 285

Sharp v Deputy Federal Commissioner of Taxation 88 ATC 4184

State of Western Australia and Dowding v Bond Corporation Holding Ltd (unrep. Supreme Court of Western Australia; Full Court; 3/4/91; Library No. 8793)

HEARING

PERTH
25:2:1992

Counsel for the Applicant: Mr M.J. Young

Solicitors for the Applicant: State Crown Solicitor

Counsel for the Third Respondent: Mr M.J. Stevenson

Solicitors for the Third Respondent: Jackson McDonald

ORDER

The motion for leave to appeal is dismissed.

The third respondent to pay the applicant's costs of the motion.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On 10 February 1992, I made orders striking out parts of the applicant's statement of claim with leave to further amend the pleading in accordance with the reasons for judgment then published. Liberty was also allowed to the parties within seven days to seek such further orders as might be necessary to give effect to the reasons.

2. On 24 February further orders were made under which para 51 and some additional parts of other paragraphs of the statement of claim were struck out. These additional orders related to paragraphs which ought to have been included, but had not been included in the order made on 10 February 1992. At the hearing on 24 February, counsel for the third respondent moved for leave to appeal from my decision so far as it related to his client's motion for orders striking out all or part of the amended consolidated statement of claim and for an order that there be a separate pleading of the issue of deceit as against his client.

3. As put before the Court in a written outline of submissions, leave is sought to appeal against:

1. The refusal to strike out the whole of para 60 of the
statement of claim as embarrassing, vexatious and
prejudicial to a proper trial of the action.
2. The refusal to order that there be a separate pleading of
deceit.
3. The refusal to strike out the statement of claim against
the third respondent in its present form as embarrassing
and oppressive and likely to prejudice or delay the fair
trial of the action.

4. The application for leave to appeal is made pursuant to O.52 r.10 which provides that:

"An application for leave to appeal from an
interlocutory judgment of the Court may be made orally
to the judge who has pronounced the judgment at the
time of its pronouncement."

As I observed in Bomanite Pty Ltd v Slatex Corp. Aust. Pty Ltd (1991) 104 ALR 165 at 176, the leave requirement for appeals from interlocutory decisions reflects a policy of restraint on the part of the Court in the discharge of its appellate function with respect to the decisions of its judges taken in the exercise of original jurisdiction regulating the preparation and progress of matters for trial. In the absence of such a policy there is a danger that the trial process would become fragmented and more expensive and lengthier than it has to be. See also Wilson v Metaxas (1989) WAR 285 at 294 (Malcolm C.J.).

5. In Sharp v Deputy Federal Commissioner of Taxation 88 ATC 4184, Burchett J. took the major considerations on an application for leave to appeal to be:

1. Whether in all the circumstances the decision is attended
with sufficient doubt to warrant it being reconsidered by
the Full Court.
2. Whether substantial injustice would result if leave were
refused supposing the decision to be wrong.

These factors are interdependent. As His Honour said at p 4186:

"They bear upon each other, so that the degree of doubt which
is sufficient in one case may be different from that required
in another. Ultimately, a discretion must be exercised on
what may be a fine balancing of considerations."

The discretion is a broad one which in general will be exercised having regard to those criteria. That is not to say that the criteria so enunciated are rigid and exhaustive. If for any other reason in the interests of justice leave should be granted, then it can be granted - State of Western Australia and Dowding v Bond Corporation Holding Ltd (unrep. Supreme Court of Western Australia; Full Court; 3/4/91; Library No. 8793) pp 31-32 (Malcolm C.J.) (Rowland and Walsh JJ. agreeing).

6. The submission of counsel for the third respondent essentially retraced argument put to me on the hearing of the strike out motion. The "rolled up" nature of the fraud plea in para 60 was canvassed. Also referred to were the difficulties said to arise for the third respondent in facing claims of misleading and deceptive conduct which rely upon the deeming provisions of s.51A of the Trade Practices Act 1974 and claims for deceit based upon the same or related incidents. A tactical difficulty may arise for a litigant who has to consider whether to go into evidence to discharge the onus cast upon him by s.51A where he could merely put the applicant to proof in deceit. But that does not involve any inherent unfairness in running the two together. Evidence sufficient to establish a case under s.52 with or without the aid of s.51A will not be sufficient to establish deceit.

7. In my opinion, while different judges might take different views of the pleadings with which I have been concerned in this case, the conclusions at which I have arrived allow for the case against the third respondent to be properly defined and met by way of defence and at trial. Although the trial will no doubt be long and complex, the principal events upon which it rests so far as they relate to the conduct of the respondents fall within a narrow compass, namely what was said and done on two days in October 1987. The complexity of the statement of claim arises in part from the multiple characterisation of that conduct in the pleadings and the attribution of one party's actions to another. In my opinion, however, allowing for the partly evaluative nature of the judgment I have had to make, the possibility of serious prejudice to the third respondent, arising from those elements of the pleading which I have allowed to stand, is small. There will, of course, be opportunity for the provision of particulars and discovery so that the full ambit of the case, evidentiary as well as that formally pleaded, should be reasonably known in advance.

8. In my opinion the grant of leave to appeal from my decision is not warranted. I will therefore dismiss the motion for leave to appeal.