Federal Court Denies Leave to Appeal in Interlocutory Case

OUTCOME: Dismissed

FEDERAL COURT OF [APPELLANT]

[NAME] [APPELLANT] [COMPANY] v [NAME] and [APPELLANT] (No 2) [2012] FCA 1181 Citation: [NAME] [APPELLANT] [COMPANY] v [NAME] and [APPELLANT] (No 2) [2012] FCA 1181

Parties: [NAME] [APPELLANT] [COMPANY] [PHONE] v [NAME] AND [APPELLANT] and [COMPANY] [PHONE]

File number: NSD 1543 of 2012

Judge: [NAME] of judgment: 25 October 2012

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – request for fixing a date for filing application for leave to appeal – whether interlocutory orders will affect final result

Legislation: Federal Court Rules 2011 r 35.13(b)

Cases cited: Australian Securities & Investments Commission v P [COMPANY] [2009] FCAFC 183 cited [NAME] [APPELLANT] [COMPANY] v [NAME] and [APPELLANT] [2012] FCA 1110 referred to [COMPANY] v Commissioner of Taxation (1968) 121 CLR 45 applied [NAME] v [COMPANY] (2002) 209 CLR 478 applied [NAME] v [NAME] ([COMPANY] (2006) 154 FCR 554 cited

Date of hearing: 25 October 2012

Place: [APPELLANT]: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Counsel for the [APPELLANT]: [[APPELLANT]] and [NAME]

Solicitor for the [APPELLANT]: [[APPELLANT]]

IN THE FEDERAL COURT OF [APPELLANT] 1543 of 2012

BETWEEN: [APPELLANT]

Applicant

[APPELLANT]

[COMPANY] [PHONE]

[APPELLANT] OF ORDER: 25 OCTOBER 2012 [APPELLANT]

THE COURT ORDERS THAT:

1. The applicant's interlocutory application dated 19 October 2012 be dismissed.

2. The applicant pay the second [APPELLANT]'s costs in respect of that interlocutory application.

3. There be no order as to the [APPELLANT]'s costs in respect of that interlocutory application.

4. Orders 3 and 5 dated 12 October 2012 be varied such that the time for the filing of the applicant's submissions and evidence in reply be extended to 4pm on 26 October 2012.

5. Order 6 dated 12 October 2012 be varied such that the time for the filing of the respondents' submissions be extended to 4pm on 30 October 2012.

6. The matter be listed at 2.15pm on 29 October 2012 to hear the [APPELLANT]'s interlocutory application and the applicant's application to further amend its originating application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF [APPELLANT] 1543 of 2012

BETWEEN: [NAME] [APPELLANT] [COMPANY] [PHONE]

Applicant

[APPELLANT]

[COMPANY] [PHONE]

[APPELLANT]

JUDGE: [NAME]: 25 OCTOBER 2012 PLACE: [APPELLANT] FOR

JUDGMENT 1 By its interlocutory application dated 19 October 2012, the applicant seeks an order under r 35.13(b) of the Federal Court Rules fixing a date for the filing of an application for leave to appeal from the interlocutory judgment I gave in this matter on 12 October 2012. The date sought to be fixed is 14 days after the announcement of the final judgment in the proceeding. I assume this refers to the first instance judgment. 2 These short reasons need to be read with that interlocutory judgment: [NAME] [APPELLANT] [COMPANY] v [NAME] and [APPELLANT] [2012] FCA 1110. The application I then dealt with was for: An order until further order restraining the [APPELLANT], by itself, its servants or agents, from taking any steps to perform the voyages the subject of application numbers 120700603, 120700605, 120700606 and 120700607 under any purported Variation. 3 In the result, for reasons explained in that interlocutory judgment, I then dealt positively only with the first voyage, the voyage the subject of application number 120700603. I refused the application to restrain the second [APPELLANT] from acting on the validity of the [APPELLANT]'s decision in respect of the first voyage. That voyage has now occurred. I also said that I set the matter down for final hearing on 1 November 2012, a date well before the second (and third and fourth) of the four voyages the subject of the variation of the temporary licence. On that basis, the later voyages not being imminent, I did not grant interlocutory relief in respect of those later voyages. 4 The affidavit read on the interlocutory application articulates two reasons in support of the application. 5 First, in a final hearing the applicant will maintain its application for declaratory relief in relation to the decision of the Minister's delegate for the first voyage since the applicant wishes to be able to put the ship involved in that decision in respect of that voyage forward in the future as an available vessel to perform voyages to Bell Bay. The applicant proposes to seek leave to appeal from certain conclusions reached in the judgment of 12 October 2012. 6 Second, the affidavit says that the applicant wishes to maintain the injunction that was sought and refused in relation to the later voyages. 7 It is trite law that an appeal lies from orders and not from reasons or conclusions: [COMPANY] v Commissioner of Taxation (1968) 121 CLR 45 at 64 per Barwick CJ. This decision has been followed by Full Courts of this Court: [NAME] v [NAME] ([COMPANY] (2006) 154 FCR 554 at [34] and following and Australian Securities & Investments Commission v P [COMPANY] [2009] FCAFC 183 at [35]. 8 It is also trite law that in an appeal from a final order, an appellate court can correct any interlocutory order which affected the final result ([NAME] v [COMPANY] (2002) 209 CLR 478 at 482–484 and 494–497. 9 In my view it follows that on one alternative the interlocutory order I then made will affect the final orders, which appears unlikely but which would have the consequence that on appeal any such error could be corrected: indeed it is implicit in the present application that the applicant wishes to see if there are any errors in the final judgment carried over from the interlocutory judgment. 10 The other alternative is that the interlocutory order will not affect the final orders and operated only in relation to an event now passed and thus no longer affects any rights or interests of the applicant. 11 I note that the second [APPELLANT] accepts, at the level of principle, that declaratory relief is still obtainable by the applicant at the final hearing in relation to the first voyage. 12 Overall, in the present circumstances it is not necessary or appropriate to grant the extension of time in order to do justice between the parties. The rule is directed at least in part to the affected parties having early certainty as to whether an appeal is sought to be brought by another party from an interlocutory decision. In this respect it does not seem to me to be a distinguishing factor relevant to the Court's discretion that the final hearing is imminent. 13 In my view the question of costs consequences in relation to not granting interim relief on 12 October 2012 in respect of voyages 2, 3 and 4, a matter relied on by the applicant, does not alter this conclusion. It is to be remembered that the only issue before me is whether or not the applicant should now be entitled to further time in which to file an application for leave to appeal, the applicant being within time to file such an application. 14 For these reasons I refuse the relief sought in the applicant's interlocutory application. The order that I make is that the interlocutory application be dismissed, the applicant to pay the second [APPELLANT]'s costs. I note that the [APPELLANT] did not participate in the application other than to require a letter dated 18 October 2012 to be placed before the Court. There should be no order as to the [APPELLANT]'s costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 26 October 2012