Benz v P D Mortgage Services Pty Ltd [1999] FCA 153 (19 February 1999)

Last Updated: 8 March 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Benz v P D Mortgage Services Pty Ltd [1999] FCA 153

ELIZABETH MINA BENZ V P D MORTGAGE SERVICES PTY LTD

QG 154 OF 1998

SPENDER, KIEFEL & DOWSETT JJ

19 FEBRUARY 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 154 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ELIZABETH MINA BENZ Appellant
AND:	P D MORTGAGE SERVICES PTY LTD Respondent
JUDGES:	SPENDER, KIEFEL & DOWSETT JJ
DATE OF ORDER:	19 FEBRUARY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application for extension of time within which to seek leave to appeal is refused.

2. The notice of motion filed 20 November 1998 is dismissed with costs, including reserved costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 154 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ELIZABETH MINA BENZ Appellant
AND:	P D MORTGAGE SERVICES PTY LTD Respondent

JUDGES:	SPENDER, KIEFEL & DOWSETT JJ
DATE:	19 FEBRUARY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 Before the proceedings were called on, the Court has had the opportunity of looking in great detail at the material contained in the five appeal books, and in particular at the material on which Elizabeth Mina Benz relies in her attempts to challenge the orders made by Drummond J on 23 April 1997, and on 12 October 1998. Mrs Benz, in the original proceedings, has filed a notice of motion which appears at pp 397 and 398 of the appeal papers.

2 She seeks orders for:

"1. An extension of time within which to file and serve a notice of appeal from the Order of His Honour Drummond J of 23 April 1997;
2. An application for leave to appeal, and an extension of time within which to bring such application form the Order of His Honour Drummond J of 12 October 1998.
3. That the proceedings including any execution upon orders and/or judgment be stayed pending hearing of the Appeal of the costs orders made including reserved costs.
4. That costs of and incidental to this Application be costs in the cause of the Appeal.
5. Such further or other order or direction as may be deemed meet."

3 The substance of the submissions which have been put before the Court on Mrs Benz's behalf are really not directed either at explaining the delays that have occurred since the making of those two orders by Drummond J, nor to addressing in any way at all alleged errors made by his Honour. Rather the substance of the submissions is directed to establishing the merits of a claim that Mrs Benz may have arising out of dealings with, amongst others, the respondent P.D. Mortgage Services Proprietary Limited, and the other respondents.

4 We say this because there seems to be a fundamental misunderstanding of what has to be proved in the nature of an application for orders of the kind sought on this appeal.

5 We set out the orders made by his Honour on 23 April 1997, and his Honour's orders of 12 October 1998.

" ORDER

JUDGE: DRUMMOND J
DATE OF ORDER: 23 April 1997
PLACE: Brisbane

THE COURT ORDERS THAT:
A. In relation to the notice of motion filed 27 March 1997, on behalf of the First, Second and Third Respondents:
Without prejudice to the entitlement of the First to Third respondents to apply for additional particulars -
1. By 22 May 1997, the applicants shall file and serve a response to paragraphs 52 to 56 and 58 to 60 of the request for further particulars of the First to Third respondents filed 18 February 1997.
2. Paragraph 29 of the applicants' statement of claim be struck out on the ground that it is grossly deficient, but the applicants shall have leave to file and serve an amended statement of claim repleading paragraph 29 so as to identify in relation to each breach of statute and duty alleged the material facts relied upon to establish that breach.
3. Such further amended statement of claim is to be filed and served by 22 May 1997.
4. If the applicants fail to comply with either the order in respect of the requirement for further particulars or the filing of the amended statement of claim, the applicants' action against the First, Second and Third respondents shall stand dismissed on 23 May 1997, with costs of the proceeding and reserved costs if the action is dismissed from 23 April 1997.
B. In relation to the notice of motion filed on 10 February 1997 on behalf of the fifth respondent:
Reserving the right of the fifth respondent to apply for further particulars -
1. The applicants are to provide further and better particulars of paragraphs 1(b), 3, 6, 7, 8(g) and 24 of the statement of claim by 22 May 1997.
2. Paragraph 29 of the applicants' statement of claim be struck out as against the fifth respondent, with leave to the applicants to re-plead by 22 May 1997.
3. In default of compliance with either the order in respect of the requirement to provide further and better particulars of the order with respect to re-pleading paragraph 29 of the statement of claim, the applicant's action as against the fifth respondent shall stand dismissed on 23 May 1997.
4. In the event that the applicants' action against the fifth respondents is dismissed in consequence of a failure to comply with either of the relevant orders, the applicants shall pay the fifth respondent's costs of and incidental to today's notice of motion in any event, and of the action, including the fifth respondent's reserved costs.
5. The applicants shall be deemed to have complied with the requirements of order 1 by serving on the First to Third respondents a response to the requests contained in paragraphs 52 to 56 and 58 to 60 of the First to Third respondents' request for further particulars.
C. In relation to the notice of motion filed on behalf of the sixth respondent on 21 March 1997:
Without prejudice to the rights of the sixth respondent to apply for further particulars -
1. By 22 May 1997, the applicant shall file and serve the same particulars of the allegation of conspiracy in paragraph 24 of the statement of claim to the sixth respondent.
2. Paragraph 29 of the statement of claim be struck out as against the sixth respondent, with leave to the applicants to file and serve an amended statement of claim so as to identify in relation to each alleged breach of statute and each alleged breach of duty the material facts relied on to establish that breach.
3. Such amended statement of claim is to be filed and served by 22 May 1997.
4. If the applicants fail to comply with either the order in respect of the further particulars or that in relation to the amended statement of claim, the applicant's action against the sixth respondent shall stand dismissed on 23 May 1997, with costs, including reserved costs."

"JUDGE: DRUMMOND J
DATE OF ORDER: 12 October 1998
PLACE: Brisbane

THE COURT ORDERS THAT:
1. The Notice of Motion filed 23 June 1998 and the amended notice of motion filed 14 July 1998 be dismissed with costs, including any reserved costs on the notices of motion."

6 The history preceding the present application is set out in his Honour's reasons for judgment of 12 October 1998, and it is unnecessary to repeat it.

7 The fact is that each of the two sets of orders sought to be made the subject of this application are interlocutory. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976, leave is required to appeal from an interlocutory order. Each of the appeals relates to matters of practice and procedure only. They are not directed to whether there is any merit in any claim which Mrs Benz may wish to pursue.

8 The relevant tests on an application to extend time within which to seek leave to appeal from an interlocutory order appear from the judgment of the Full Court of the Federal Court of Australia constituted by Sheppard, Burchett and Heerey JJ in Decor Corporation Proprietary Limited v Dart Industries Incorporated [1991] FCA 655; (1991) 33 FCR 397.

9 The Full Court in Decor held that the tests set out in Niemann v Electronic Industries Ltd [1978] VR 431 ought normally to be applied in determining whether leave to appeal from an interlocutory decision should be granted.

10 There has been no attempt in the material to provide a convincing explanation, or indeed any explanation, for the delays that have occurred. Putting that hurdle to one side, and addressing the question whether the Court ought to grant leave to appeal from the interlocutory orders of Drummond J in each case, the tests to be satisfied are whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered and, secondly, whether substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong.

11 The notice of motion was not filed until some 19 months after the orders in 1997 were made and some 18 months after the action was dismissed by reason of the applicant's failure to comply with them. There is no proposed notice of appeal, so that the prospects of any appeal are somewhat conjectural. There has been no attempt to identify some appealable error in the decisions of Drummond J.

12 Rather this application is an attempt to use the appeal as a vehicle to argue the merits of the appellant's complaints, including, it appears, a reference to matters not pleaded in the previous proceedings. Any proposed appeal does not enjoy any prospects of success. Order 10 r 7(2) of the Federal Court Rules provides for the making of the orders of the kind that his Honour made. In making each set of orders his Honour was called upon to exercise a discretion and before the applicant could succeed, it would be necessary to demonstrate that there was some legal error in the exercise of his Honour's discretion.

13 It seems to us plain that no error has been demonstrated and the proposed appeal and the application for leave to appeal enjoy no prospects of success. The submissions of Mrs Benz are not, in truth, advanced as a basis for seeking to review the decisions of his Honour Drummond J, but rather, are an attempt to prosecute the original complaints which were the subject of his Honour's orders. This is a clear case where the Court ought not to grant any indulgence to the applicant in the circumstances.

14 An application for an extension of time within which to seek a leave to appeal is refused. The relief sought in the notice of motion by Mrs Benz in her motion filed on 20 November 1998 ought be refused. The notice of motion filed 20 November 1998 is dismissed with costs, including reserved costs, to be taxed if not agreed. Those are the orders of the Court.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 19 February 1999

No appearance for the Appellant
Counsel for the first, second and third Respondents	Mr S L Doyle SC and Mr D G Clothier
Solicitors for the first, second and third Respondents	Deacons, Graham & James
Counsel for the fifth Respondent:	Mr P J Favell
Solicitor for the fifth Respondent	Michael Stewart
Counsel for the sixth Respondent	Mr D K Smith
Solicitor for the sixth Respondent:	Peter Brooks & Co
Date of Hearing:	19 February 1999
Date of Judgment:	19 February 1999