Wimmera Industrial Minerals Pty Ltd v RGC Mineral Sands Ltd [1997] FCA 539 (12 June 1997)

CATCHWORDS

Practice and Procedure - application for leave to appeal from interlocutory order refusing motion for further and better particulars - whether injustice likely to result from orders made - whether leave to appeal should be refused on ground that no injustice is likely to result from orders made.

Cases

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

Jarrett v Seymour (1993) 46 FCR 557

Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

State of Queensland v JL Holdings Pty Ltd (1997) 171 ALR 353

VG215/94 WIMMERA INDUSTRIAL MINERALS PTY LTD v RGC MINERAL SANDS LIMITED

Northrop ACJ, Whitlam and Merkel JJ.

Melbourne

12 June 1997

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION )

No. VG 215 of 1994

BETWEEN:

WIMMERA INDUSTRIAL MINERALS PTY LTD

Applicant

AND:

RGC MINERAL SANDS LIMITED

Respondent

CORAM: NORTHROP ACJ, WHITLAM AND MERKEL JJ

PLACE: MELBOURNE

DATE: 12 JUNE 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION )

No. VG 215 of 1994

BETWEEN:

WIMMERA INDUSTRIAL MINERALS PTY LTD

Applicant

AND:

RGC MINERAL SANDS LIMITED

Respondent

CORAM: NORTHROP ACJ, WHITLAM AND MERKEL JJ

PLACE: MELBOURNE

DATE: 12 JUNE 1996

EX TEMPORE REASONS FOR JUDGMENT

NORTHROP ACJ: I have asked Merkel J to express his reasons.

MERKEL J: The applicant, Wimmera Industrial Minerals Pty Ltd, is applying for leave to appeal from an order made by Ryan J on 6 March 1996. In substance, the order dismissed the applicant's motion for further and better particulars of the respondent's defence and amended particulars of grounds of invalidity as sought in a written request of the applicant dated 27 February 1995. His Honour reserved leave to the applicant, if so advised, to renew its application after the filing and service of the evidence upon which the respondents propose to rely at trial. The appeal relates to a matter of practice and procedure.

This Court and other courts have continuously cautioned against the grant of leave to appeal from an interlocutory order on a matter of practice and procedure. The reluctance of the courts to interfere with interlocutory orders is even greater when, as in the present case, the order sought to be appealed from does not affect substantive rights. Full Courts of this Court in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 and Jarrett v Seymour (1993) 46 FCR 557 at 559-60 have said that it may not always be necessary to establish that the order has resulted in substantial injustice. However, Gibbs CJ and Aickin, Wilson and Brennan JJ said in Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177:

It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.

In the present case, the applicant submits that the generality of the particulars as to prior user given by the respondents is such that, in a real and practical sense, the applicant is being deprived of the opportunity to which it is entitled to meet the particular case of prior user which it will have to meet at trial. The respondents submit that the particulars given sufficiently identify the acts constituting prior user as required under the Patents Regulations and the Rules of Court.

Since his Honour's order, discovery has occurred, a discovery dispute has been heard but not yet determined, and the management of the case has been assigned to the docket of a judge of the Court, who in the normal course can be expected to deal with further interlocutory steps and then proceed to hear and determine the matter at trial. The applicant has quite properly conceded that the generality in the particulars, of which it has complained to date, can be cured in the course of those further interlocutory steps.

Although it is correct to say that in practice, if not in theory, it may not be open to the applicant to renew its earlier motion for the further particulars sought by it until after the filing of the respondent's evidence pursuant to the leave reserved by His Honour, there is no impediment to the applicant making a new and more limited request for particulars which might be considered by the docket judge. In any event, the Court's interlocutory processes are such that other interlocutory steps, including orders for greater specificity in discovery, the timing for the filing of evidence in relation to prior user, and, if thought appropriate by the docket judge, even leave to interrogate, may be sought to cure the generality of which the applicant presently complains.

It follows that the applicant has not demonstrated that any injustice is likely to flow from the orders sought to be appealed from. As was recently reiterated in a pleading dispute in the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 171 ALR 353 at 357 by Dawson, Gaudron and McHugh JJ: "Justice is the paramount consideration...".

In the present case I see no reason why the problems of which the applicant presently complains, if they are real and not illusory, cannot be resolved in the case managed interlocutory processes prior to or in the course of the filing of evidence, by reference to the same consideration. I have a clear view that it is in the interests of justice that these problems, or clarification of the case to be met by the applicant at trial, should be resolved by the docket judge and that no injustice will flow from the order appealed from. Accordingly, it is appropriate to refuse leave to appeal without having to consider the other issue arising on the application for leave, namely whether the judgment sought to be appealed from was attended by sufficient doubt to warrant the grant of leave to appeal.

NORTHROP ACJ: I agree with the reasons expressed and have nothing further to add.

WHITLAM J: I also agree with the judgment of Merkel J.

NORTHROP ACJ: In the circumstances the Court orders that the applicant's motion for leave to appeal from orders 1, 2 and 3 of the judgment of Ryan J given on 6 March 1996 be refused, with costs.

I certify that this and the preceding 3 pages are a true copy of the revised Reasons for Judgment of the Court.

Associate:

Date:

Judgment: 12 June 1997

Appearances: Dr J McL Emmerson QC with Mr J Beach instructed by Arthur Robinson & Hedderwicks for the applicants.

Mr D K Catterns QC instructed by Allen Allen & Hemsley for the respondents.