{8% TN THE FEDEFAL COURT OF AUSTRALTA QUEENSLAND DISTPICT PECISTIPY GENERAL DIVISTON ON APPEAL FROM THE FEDEPAL COUPT OF AUSTRALTA \ BETWEEN : wt ~ Feependert: AND: THE HONSUPABLE KIM CHRISTIAN BEACLEY, MINTSTEF OF STATE FoR DEFENCE A3ND THE COMMONWEALTH OF SUSTPALTS BETSPaMeE LE SECIL, 13g ERTEMECPE FEBTINE FOIE IUD SMENT of the motzen, 1¢ 2s brought "Competency of appeal 18. (1) A respondent may move on notice at any time for an order dismissing an appeal ag incompetent. (2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the aroellant. (3) If a yrespondent does not move under sub-rule (1) dut the appeal nevertheless is dismissed by the Tourt as incompetent, the respondent shall net. unless the Court otherwise orders, receive any casts of the appeal, and the Couct may order that he pay the appellant any costs of the aboeal proving useless ar unnecessary." foul. be brought feom furtn a ruadsment a oo A ~ era Sousch Fides lealec aaa the questiin of leave to awpeal from wniterlicunce7 qudementi if fhe Tau.t The question that falls tc be determined on the aetier 2s the eatuce of the cugvrert given by Fintaz 7 Te wi k TAIT. now vies, that thas motiia falls to be deteswraned or crease Technictal grounds. J. ardered that the matter be remitted to the Federal Couct WwW QO. 21 January 1985, the Minister of State for Defence and the Commonwealth of Australia, the respondents to Mr. Patton's proceeding, filed a notice of motion seeking an order that the aprellant's amended statement of claim be "dismissed as disclosing no reasonable cause of action." co m ty rTce) iT Pp n 2D oO hhoO or H e)ny at oO cr Dp 1D The terms of rar present difficulty, because 9.11 ¢©.14 provides:- "Embarrassment, &c. 16 Where a pleading - fa) 1scloses "o reasanable cause of action ar gdefenc2 or other case an clate te the nature of the pleading 'py has ES tendanc £ judice, embacr assesment OL ing; or ire 12 oftyerv1ie at cf tne Tyart, the Court ant ayder eakbo the ot "Jy rea treo gat." cack thar cipfe:y2s "Frivolity °°. Where nny eyes aad no ae ae oe on Oe es a tS {2) no veazcomable cause the Court may crder that ce dismissed gensraliy ar for relief in the proceedi Ic 1s to be noted that the 0.11 ©.16 power, where plesding discloses no reasonable cause of action, entitles Court to strike out the whole or part of that pleading. source of the Ps power under 9.20 r.2, where no reasonable cause of action is disclosed, enables the Court to dismiss the proceeding. As w [oe 11 be apparent, an order mad= pursuant to 9.20 r.2 would operate as, and be a final order; an order made under 0.11 r.16 18 properly to be characterised as interlocutory. asserted t2 be the basis of Mr. Pattcn's claim vas held by his Thie kishlisghte tee techniralitry ff Hhizg oyacenrt BorlicatTian: vcretlelecs, the conessamisrces are cleas be A q 1Q ny it 'Ss iD ay pay jee Ooiyat Ii4 == i tu intended a2 ta anole that out under @ ll r 16;" and the arder 'chat he made was that the amendment sought be refused, and that the statement of claam he struck out in ite It 1¢ clear that his Honour vas acting under 0.11 r.14, and I am of the view that, consequently, the order was interlocutory and required leave. Now, Mr. Patton ain his submissions on the motion has carefully veferred to Halsbury's Laws of England, (4th ed., Yol.26, p.238, at paragraph 505, where rp1D general propositions as to the distinction between final and interlocutory orders are referred to. There the learned author sadys:- "In general a judgment or order which determines the principal matter in question 1s termed 'final'. A fanal judoment has been defined as 'a judgment obtained rn oan oactian by which a preeviousls existing liability of the defendant to untiff 1s ascertained or established' and ydgment abtained in ar action by which the " whether there vas a pre-existing cighe of aintiff against the deferdant i¢ 'finally ned in favouc e1ther of the olaintiff or of endank," Fin are such ag at ance out an snd to the declaring that the plarntiff has e1t himself, cr enor, te recever the sues 3 mm, '4th Edn 792°, M., CTatwen leferz alec 2 oagagyach 46, where the Tearnad author says:i- ch dtes not eal with the final rights 2 ies, but either (1) ais made hefore yuagmernt, and gives no fimal decision on the s dispute, but is merely ona matter of is 2 2 or (23 is made after judgment, and merely directs how the declarations of right already worked cu ' zven in the final judgment are to he , ts termed 'interlocutory'." Further, a final order is an order which finally disposes of the rights of the parties: see Licul v. Corney (1976) 50 A.L.J.R. 423 OD py ct > fy W I Py p Roy ? oO 's Q aay o io" ca] qy as he then tas. Both parties referred to Hunt v. Allied Bakerires Ltd 1 W.L.R. 1326. In that case, Lord Evershed M.P. said at Ow i) co be mn we 'p Ww on i H -..-T am eft un na doubt at all that, rightly or rarongly, orders dismissing actions - either because thev are frivelous and vexatious, or or the ground of disclosure of no reasonable cause of action - have for 3 very Lona time heer treated as interlocutory." ° : wo yaestion cf Fravolity of veratiousne a tn Pineus FT. cae) deal qemund of ocmetrer thera wae a c@asonakble caugs of action T. fallews that IT am oof the tpirior that his Berour's nedey ie liecertls to be tharacterlzed as interlocutory To ores that tontlasian in full recognition cf the fect that, in a wpeactical sense, the order dicroses of, rer is a 3 n, Rist in recognition ar the fact that, in substance, a final judgment ts the same effect as the interlocutory judgment of Pincus I. could have been given under 0,20 r.2. It 18 appropriate to note that Pincus J, refused leave te amend, which was no doubt because the proceeding could not be made viable by amendment. It follows then that leave is required and, in the absence of leave, the appeal 15 incompetent In those circumstances I am constrained to dismiss the appeal as incompetent. On the alternative submission, 1t was submitted that there was power under s.5€ of the Feceral Court of Australia Act, 1976, te require security for the payment of costs cf the arpeal, and that «hrle security for costs ig not usually ordered on an aoveal {see 9.52 r 20. the circumstances of this case and the submissions made by Mr. Patton before Pincus 7. are such to make 1b aperopriate tha some security of costs be ordered. The baeis, essentially, ts chat the alleged iumpecunicsity cf Me. Pakbtor can properly be a around for veguiring security for costs of an anresal cf ar anneal Neaves I ur Cirarrira ov. Cilapeina 'unrecerted, 24 Mar 19€?) sazrd:- "Te 13 row well established thar the impecanicerty of 1am annellant resulting ir an inability to pay "he costs cf an appeal should that apeeal net be Po tressful amourte fo 4 Fpecial circumstance suet 7 gerx fore security: Harlock v. Ashres 19 Ch.D.84; Fardgral v. Eecdek C1273 iP, da, The circumstance that the apreliant is a legally aidec verson will not peesrtlude the making of such ar order: Scerri v. Northam Hoi@ings Pty Ltd. £1947] V.PR. €74; Smail v. Burton £19753 V.R 776: see also Rajski v. Computer Manufacture ar@ Design Pty.Ltd. £1932] 2 N,S.W.L.P. 442." co I am concerned only with the question of security of the costs of the appeal. In the light of my conclusion as to the competency of the appeal, it is unnecessary to conclude as to whether security of costs should be provided and, if so, in what amount. In the light of my earlier findzngs, I order that the appellant': appeal be dismissed as incompetent. The ordinary rule should asrly as te costs. and I order that the respondent toa the mation say the coste of and inczdental to the motion, toa be tamed if not agreea. ryt RAT fee at