VATCHNURDS Practice and Procedure - application for leave to appeal - mandatory interlocutory injunction - whether it was shown that primary judgment was wrong, or at least attended with sufficient doubt to justity granting leave, or that substantial injustice would be done by leaving the judgment unreversed, or that there were any other circumstances which would justity the grant ot leave, assuming without deciding that the motion to a Full Court for leave, was competent. ' Niemann v. Blectronic Industries Ltd (1978) VR 431 Adam —. Brown Male Fashions Pty Ltd v. Philip Morris Inc (1981) 148 CLR 170, at 177. Commissioner ot 'Taxation v. Nestle Australia Limited ¢«G 346 of 1986, 5 November 1986) ASPAR AUTOBAKN Q-OPERATIVE SOCIETY & ORS v. DOVAGA PTY LIMITED & ORS VG 295 OF 1986 Sweeney, Northrop & Keely JJ. Melbourne 21 November, 1986 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN : ~- eevee ASPAR AUTOBARN CO-UPERATIVE SOCIETY NO. VG 295 of 1986 LIMITED RAMPANT HOLDINGS PTY LIMTED BL-NIDO NOMINEES PTY LIMITED CARAC SALES PTY LIMITED AITH PTY LIMITED McNIVENS PTY LIMITED WARRAGUL AUTO ACCESSORIES PTY LIMITED HIGHTAC PTY LIMITED First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant Sixth Applicant Seventh Applicant Eighth Applicant JUDALEX [INVESTMENTS PTY LIMITED MORNINGTON SPEED SHOP PTY LIMITED & J ACCESSORIES PTY ELIMI Ninth Applicant Tenth Applicant Eleventh Applicant WIMMERA SPEED & AUTO CENTRE PTY LIMITED AUTOPART CENTRE PTY LIMITED Twelfth Applicant Thirteenth Applicant PROFESSIONAL PERFORMANCE +a tirm) Fourteenth Applicant AND: DOVALA PTY LIMITED First Respondent VICTOR DEMERIS Second Respondent PREBEN HUNDAHGL Third Respondent DONALD MORRIS Fourth Respondent PATCHSELL PTY LIMITED Fifth Respondent THE COURT: Sweeney, Northrop and Keely JJ. DATE JUDGMENT DELIVERED: 10 November, 1986 DATE REASONS FOR JUDGMENT DELIVERED: 21 November, 1986 PLACE: Melbourne MINUTE OF ORDER THE COURT ORDERS THAT: 1. That the motion be dismissed with costs. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) NO. VG 295 of 1986 , GENERAL DIVISION BETWEEN : ASPAR_ AUTUBARN CO-OPERATIVE 30 ¥ LIMITED First RAMPANT HOLDINGS PTY LIMTED Second EL-NIDO NOMINEES PTY LIMITED Third CARAC SALES PTY LIMITED Fourth AITH PTY LIMITED Fifth McNIVENS PTY LIMITED Sixth WARRAGUL AUTO ACCESSORIES PTY | LIMITED Seventh HIGHTAC PTY LIMITED Eighth JUDALEX INVESTMENTS PTY LIMITED Ninth MORNINGTON SPEED SHOP PTY LIMITED Tenth E,B & J ACCESSORIES PTY LIMITED Eleventh WIMMERA SPEED & AUTO CENTRE PTY LIMITED Twelrth AUTOPART CENTRE PTY LIMITED Thirteenth PROFESSTONAL PERFORMANCE (a firm) Fourteenth Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant Applicant AND: DOVALA PTY CIMITED First Respondent VICTOR DEMERTS Second Respondent PREBEN HUNDAHL Third Respondent DONALD MORRIS Fourth Respondent PATCHSELG PTY LIMITED Fifth Respondent THE COURT: Sweeney, Northrop and Keely JJ. DATE : 21 November, 1986 PLACE : Melbourne REASONS FOR JUDGMENT Sweeney and Keely JJ. By application dated 17 July 1986 the applicants sought, amongst other things, interlocutory relief against the respondents by way or injunctions restraining them from using the word "Autobarn" or the words "Auto Barn" in the course of or in connection with their businesses. The claim tor interlocutory relief was decided by Jenkinson J. on 13 August 1986, when his Honour made the following orders: "UPON each applicant by his or its solicitor undertaking to the Court that he or it will pay to any party adversely aftected by any of the orders numbered 1 and 2 such compensation (if any) as the Court thinks just, in such manner as the court directs and that in the event that the claims ror relief specified in paragraph 4(b) of the originating application herein be ultimately retused in this proceeding he or it will pay all costs incurred by the respondent Dovala Pty. Ltd. in or in connection with the change of name hereinafter ordered ae to be etfrected; AND UPON the applicant Aspar Autobarn Co-operative Saciety Ltd. by 1ts solicitor undertaking that 1¢ will torthwith apply ror registration or the name Autobarn under the Business Names Act lY¥o2 of the State or Victor1la and that in the event that the claims aforesaid be ultimately retused in this proceeding 1t will at its own cost do all such acts and things and execute all such documents as may be necessary or desirable to be done or executed in order to enable the respondent Dovala Pty. Ltd. to assume once more its registered business name 'Auto Barn'; THE COURT ORDERS THAT: lL. Each of the respondents Dovala Pty. Ltd., Vactor Demeris, Preben Hundahl and Donald Morris be restrained until the determination ot the proceeding or turther order from using 1n any way in the course of or in connection with business or trade the name Auto Barn or any other name which 13 substantially identical with or deceptively similar to the name Autobarn . 2. The respondent Dovala Pty. Ltd. lodge forthwith with the Commissioner for Corporate Affairs or the said State a statement or the kind which 1s ordained by Section 12(3) of the Business Names Act 1962 of the said State and in the form prescribed notitying the said Commissioner that it has ceased to carry on business in the said State under the business name Auto Barn'. 3. The applications for interlocutory relief as against the respondent Patchsell Pty. Ltd. be dismissed. 4, Each party's costs of the applicants applications tor interlocutory relief be reserved." The background to the application was conveniently set out by his Honour as tollows:- "There are in Melbourne some shops which sell motor vehicle accessories, some motor vehicle spare parts, and little else. The applicants, other than the first-named applicant, and the respondents are concerned in the conduct ot shops of that kind. The shop keepers with which the respondents are associated are members of a company called Victorian Auto Accessories Group Pty. Ltd., which acts on behalf of its members to secure' the financial advantages which purchasing of stock, and advertising, on behalf of all the members attracts. 'The members signify their membership by display of the trade mark "Auto Group". In the middle ot 1985 unhappy ditterences led to the withdrawal or expulsion ot some members. Some or them joined with other motor vehicle accessories s3hop keepers to rorm the tirst-named applicant wunder the Co-operation Act 1958 (Vic. on 15 July 1985. The other applicants are most ot the tirms and companies on behalf ot which membership ot the First-named applicant 1s held by natural persons. The objectives or the association which finds juristic expression in the first-named applicant are similar to those which animate the association which has for its trade name the expression Auto Group . On 27 August 1985 the members ot the first-named applicant resolved to use the word Autobarn' as a trade name by which to designate their association and on 30 August 1985 that word was inserted into the tirst-named applicant's name. But on 27 August 1985 the applicants solicitors learnt that the name ' Autobarn could not be registered under the Business Names Act 1962 (Vic.) because the name 'Braddy 3 Auto Barn' was registered in respect of an automotive repair business in West Geelong. Accordingly the name Aspar Autobarn was on that date registered as the first-named applicant's business name. [t was the single word 'Autobarn', however, which the other applicants and the first-named applicant on their behalf used as the trade name by which to advertise to the Public their new association 1n trade. Although each member of that association continued to trade and to advertise under its own name or its own business name, each also gave prominence on its premises and in other advertising to the word Autobarn'. The get-up of the word was uniform among the applicants: contiguous, coloured, parallel lines 'green on yellow) below the word or at each end of the word, a capital letter '0' in the middle of the word and a lower case a at the beginning. During September and October 1985 many of the applicants painted the word in that get-up on ther shops and in late October and November they joined in advertising 1n which the word and the get-up were prominent. It was expected that on 4 October 1985 the registration ot the name 'Braddy's Auto Barn' might expire and I infer that the extensive, and expensive, use of the word 'Autobarn' by the applicants in September and October 1985 was thought to be justified by their expectation of securing registration of the word without association with the word 'Aspar' after the lapse of a month after 4 October 1985, which $.11(4) of the Business Names Act 1962 required the Commissioner for Corporate Atfairs to allow betore accepting the word for registration. When on 7 November 1985 the applicants' solicitor sought to apply for registration ef the word 'Autobarn', he found that registration of the word, in the form 'Auto Barn', had been granted to the respondent Victor Demeris on 30 October 1985. The three natural persons who are respondents are directors of the first-named respondent and the respondent Victor Demeris 13s a director ot the 5. fifth-named respondent. The respondent Dovala Fty. Ltd. has since $y November lys85 conducted a motor vehicle accessories shop at 155 Malop Street Geelong. The right to use the named Auto Barn was transferred by Mr. Demeris to Dovala Pty Ltd. on 41 uctober 1985 and 1t i183 under that name that the business which Dovala Pty. Ltd. conducts at 155 Malop Street has been carred on. The word appears on the tront panel ot a door giving access to the shop trom Malop Street, but that was not put on the door until May or June lits. Within the shop a 31gn about 8 reet wide and about 1 toot high has been displayed in an elevated position since Dovala Pty. Ltd. commenced trading on 3u November 1985. On the 31gn 18 printed in letters about 6 inches high the word Autobarn', as a single word and in letters ot which only the First 18 a capital. The trade name Auto Sarn 1s used to designate the proprietor of the shop on credit card documents. No advertising, except as has been already indicated, or the Geelong shop or its wares or the business conducted init has been associated in any way with the word Autobarn or the words 'Auto Barn'. The latter circumstance was ocxplained in evidence as a consequence ot the use of the trade mark Auto Group by the members or Victorian Auto Accessories troup Pty. Ltd., ot whom Dovala Pty. Ltd. 18 one. There was evidence that members are subject to contractual restrictions on the use otf a trade mark or name other than Auto Group The fifth-named respondent conducts a motor vehicle accessories shop at l High Street Preston, where the mark 'Auto Group' 13 prominently displayed. In about May or June 1986 there was placed on the glass tront door of the shop the following sign: Dovala Pty. Ltd. T/A Auto Barn Registered vuttice 1 High St., Preston' Neither the word 'Autobarn' nor the expression Auto Barn' has been otherwise associated with any premises with which a respondent is connected, except the shop at 155 Malop Street Geelong." By notice of motion dated 7 September 1986 the tirst, second, third and tourth respondents stated that they would move a Full Court for an order granting them leave to appeal trom his Honour's order. This notice was given pursuant to s.24(1A) or the Federal Court Act 1976 which provides that an appeal shall not be brought from an interlocutory judgment "unless the Court or a Judge gives leave to appeal". In his reasons tor Judgment the learned trial Judge set out the claims made bv the applicants to have acquired and to enjoy a reputation and goodwill of substantial value under and by reference to the name "Autobarn"., as being associated with one another a3 members or the tirst applicant. The applicants claimed that there had been a passing off by the tirst respondent of its business at Geelong as associated with the businesses or the applicants under the trade name "Autobarn". His Honour proceeded to refer to the submissions of counsel and to consider the facts which had been placed before him on atfidavit and the operation or the Business Names Act 1ly62 (Vic.?. He expressed the view that the applicants had committed themselves to expensive advertising of the word ""Autobarn" during a period of about two months before their reasonable expectation that the use at the word would be lawful in and atter November 1:85 and were disappointed on ° November 1985 when they learned that the respondents had succeeded in obtaining registration under the Victorian Act or the name "Auto barn". vn 3 September 1385 the first named applicant applied tor registration ot the logo "autobarn" as a Trade Mark under the Trade Marks Act 15955. His Honour held that the reputation and goodwill the 7. applicants assert undoubtedly gained most of the value now sought to be protected by injunction atter / November "when the applicants who traded under the name Autobarn knew, as I would inter, that they were thereby contravening the provisions ot s.5 of the Business Names Act 1962 (Vic.), which make 1t an offence to carry on business under a business name which 18 neither registered under the Act nor consists ot the name of each ot those who are carrying on business in association. But the evidence shows that that reputation and that goodwill had come into existence shortly before November 1985, and certainly before 7 November 1985. It was not until the end of that month that any or the respondents used the word in trade or commerce. By that time the use ot the word in connection with the retarl sale in Victoria of motor vehicle accessories by a person not associated with the applicant was, the evidence shows as a strong prima facie case, likely to mislead consumers into a mistaken belief that such an association did exist." Honour then considered the question whether the applicants in trading under the name ""Autobarn" after 7 November 1985 had not disentitled themselves to equitable relief. After considering the facts and the relevant authorities, his Honour said: "My conclusion is, that the reputation and goodwill tor the protection of which the applicants seek the court's exercise of its injunctive power do not owe their existence, although substantial enhancement of their value 18 owed, to deliberate contravention of s.5 of the Business Names Act 1962 by the applicants; and that in all the circumstances ot this particular case the evil consequences of those contraventions are not ot a_ kind or gravity which would constitute a substantial impediment to the grant ot ainterlocutory injunctive relief. The registration of the word "Auto Barn" under the Business Names Act 1962 does not afford, in itself, the respondents an answer to a claim that the use of the word has constituted a breach of s.52, or 3.53(c) or s.53(d) ot the Trade Practices Act 1974: Tec & Thomas (Aust) Pry. -v. Matsumiya Comput Co. Pty. Ltd. (1984) 53 A.L.R. 167 at 176 and cases there cited. A serious question to be tried is shown by the applicants, as I think, and the question is which way the balance of convenience inclines." His Honour then turther reviewed the tacts and concluded that there 18 "a strong case tor the applicants whose prospects ot success at trial are very good" and expressed the opinion that "the balance or convenience also inclines in favour ot the applicants". He considered that the respondents other than Patchsell Pty Ltd should be restrained trom using the registered name in trade or commerce until the determination ot the proceeding. The claim for interlocutory reliet against the tifth respondent was dismissed, in the absence ot the necessary evidence involving it in the impugned conduct. His Honour then observed that as a result of the cessation of the use of the name "Auto Barn" which would flow from the grant of an injunction, under the provisions of the Business Names Act 1962, particularly ss.12(3), 13, 18 and 19, cancellation ot the registration ot the name "Auto Barn" could be expected to follow, but the necessary steps might take some months. Counsel for the applicants had submitted that an order should be made commanding the first respondent to execute an assignment to the tirst applicant ot ali its right title and interest to and in the business name "Auto Barn" and commanding 1t to lodge forthwith a statement of the kind contemplated by 3.12(3) that it had ceased to carry on business in Victoria under that name. His Honour noted that the applicants were thus seeking a 9. mandatory interlocutory injunction, rererred to the authorities which ordinarily govern the making ot such orders, and said that he did not consider that they had unqualified application in the present case, where the grant ot the mandatory orders "is properly to be regarded az merely ancillary to the substantial interlocutory reliet which 13s to be granted". His Honour considered that the second order sought should be made, "upon appropriate undertakings by the applicants ot the kind which were taken by Powell J. in Fletcher Challenge Ltd v. Fletcher Challenge Pty Ltd (1981) NSWLR 196 at 207-4," but he refused to make the tirst order. Appropriate undertakings were given, and are recorded in the order. Application was made to his Honour on 14 August tor a_ stay pending the determination ot any appeal and on that day, the following order was made: "OPON each of the respondents, Dovala Pty Ltd, Victor Demiris, Preben Hundahl, Donald Morris and Patschell Pty Ltd by his or its Counsel undertaking, pending the hearing and determination of an appeal against the Urders made herein on 13th August 1986 or until further Order: (a) mot to advertise any goods or services or any trade or business in or by reterence to the name "Autobarn" or any name deceptively similar or substantially identical thereto on radio or television or by catalogue or by other printed medium, (excluding credit card vouchers, receipts or other such documentation) or in the Yellow Pages or the Business [Information Guide or other like directory; and (b) to forthwith remove and keep removed trom display the sign reading "Autobarn" located inside the store at 155 Malop Street, Geelong; THIS vOURT ORDERS BY CONSENT: That the operation of the Orders numbered 1 and 2 made herein on 13th August 1986 be stayed until the hearing and determination of an appeal against the said Orders by the respondents Dovala Pty Ltd, Victor Demiros, Lo. Preben Hundahl and Donald Morris or turther order." The motion tor leave to appeal was supported by the submission that the use ot the word i1n question by the tairst respondent and its reputation were local to Geelong and the applicants reputation was local to Melbourne and other localities, the closest to Geelong being Sunshine. The short answer to this submission 1s that the applicants reputation was the result, amongst other things, or an advertisement in the Melbourne "Sun", circulating widely throughout Victoria, including Geelong, and the Geelong district could praperly be regarded, tor interlocutory purposes, as being embraced within the scope of 1ts reputation. The turther submission that any relevant goodwill as at 30 November 1985 was local to the business ot each applicant other than the first applicant, in which the remaining applicants were associated, ignored the reality and value of that association. The submissions which were based upon the Business Names Act 1962 had been carefully weighed by the learned trial Judge, who concluded that they should not stand in the way of the orders which he considered appropriate. It 13 important to bear in mind that the orders' under consideration were made in the exercise ofr his Honour 's discretion. Assuming, without deciding, that the motion to a Full Court for leave to appeal was competent, in our opinion it has not been il. shown that the primary judgment was wrong, or at least attended with sutficient doubt to justify granting leave, or that substantial injustice would be done by leaving the judgment unreversed, or that there were any other circumstances which would justify the grant of leave (see Niemann v Electronic Industries Ltd (1978) VR431; Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177) In parting with this matter, we observe that had the respondents devoted the time and energy, which they have dedicated to seeking leave to appeal, to an application for a speedy trial of the case itself, it might well have been decided by now. Similar considerations commended themselves to Bowen CJ., Lockhart and Sheppard JJ. in Commissioner of Taxation v Nestle Australia Limited (G346 ot 1986, 5 November 1986) when their Honours said at p.18:- "Tt is to be hoped that the parties will proceed expeditiously to have this case brought on for final hearing rather than involve themselves in tactical skirmishes on interlocutory matters such as those the subject of this appeal". fhe order of the Court was that the motion be dismissed with costs and we now publish our reasons. The directions hearing was adjourned to 13 November 1986 before Jenkinson, J. 12. I certify that this and the preceding eleven (11) pages are a true copy ot the Reasons tor Judgment herein ot their Honours Sweeney and Keely JJ. Dated: 7 1986 Associate IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. G 295 of 1986 wee www GENERAL DIVISION BETWEEN : ASPAR_ AUTOBARN CO-OPERATIVE SOCIETY LIMITED and OTHERS Applicants and DOVALA PTY. LIMITED and OTHERS Respondents COURT: SWEENEY, NORTHROP AND KEELY JJ. DATE: 21 NOVEMBER 1986 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTHROP J. This proceeding, identified as V. No. G 295 of 1986, was commenced on18 July 1986 by the issue of an application in conformity with 0.4 of the Federal Court Rules. It is a proceeding within the original jurisdiction of the Court. On 13 August 1986, the Court, constituted by a single Judge, made interlocutory orders against some of the respondents. Those respondents desired to appeal against those interlocutory orders, They have not instituted an appeal under 0.52 of the Rules; see in particular 0.52 rr.12, 13 and 14 and Form 55. By notice in writing dated 3 September 1986, in the proceeding V. No. G 295 of 1986, those respondents gave notice to the applicants that they would on 10 November 1986 move the Full Court of the Federal Court for an order that they be granted leave to appeal from the interlocutory orders. In my opinion, that motion was not in conformity with the provisions of the Federal Court Rules and was incompetent. In my opinion, the motion should be refused on that ground. The Federal Court of Australia Act 1976 ("the Act"), contains a clear distinction between the Court exercising original jurisdiction and the Court exercising appellate jurisdiction. Under the Act, subject to exceptions not presently relevant, the original jurisdiction of the Court is exercised by a single Judge; see sub-section 20(1), and the appellate jurisdiction of the Court is exercised by a Full Court; see sub-section 25(1). See also sub-sections 14(1) and (2). Under sub-section 24(1)(a), the Court has jurisdiction to hear and determine appeals from judgments of the Federal Court constituted by a single Judge but sub-section 24(1A) provides:- "An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal." In that sub-section the word "Court" means the Federal Court and the word "Judge" means a Judge of the Federal Court sitting in Chambers; see s.4. Logically, it would be expected that in the phrase "the Court or a Judge" the word "Court" refers to the Court exercising original jurisdiction and not the Court exercising appellate jurisdiction. It would be strange to find that a Judge sitting in Chambers could exercise the same powers as the Court exercising appellate jurisdiction. Sub-section 24(1A) was inserted into the Act by Act No. 72 of 1984 and came into operation on 24 July 1984. Prior to that time, there was an appeal as of right to a Full Court froma judgment of the Court constituted by a single Judge even where that judgment was an interlocutory order. The policy of sub-section 24(1A) was to prevent delays in the conduct of proceedings in the original jurisdiction by constant appeals from interlocutory orders. Before 24 July 1984, the provisions of sub-section 25(2) relevant for present purposes were:- "Applications for leave or special leave to appeal to the Court from a judgment of another court may be heard and determined by a _ single Judge or by a Full Court... ." A new sub-section 25(2) was inserted into the Act by Act No. 72 of 1984 and came into operation at the same time as sub-section 24(1A). The provisions of the new sub-section 25(2) relevant for present purposes are:- "Applications for leave or special leave to appeal to the Court ... may be heard and determined by a single Judge or by a Full Court ... ." Order 52 of the Federal Court Rules contains provisions relating to appeals to the Federal Court and applications for leave to appeal. In that Order, unless the contrary intention appears, the word "application" means application for leave to appeal and the word "Court" means the Court exercising its appellate jurisdiction; see 0.52 y.l. Prior to 15 July 1985, the rules of 0.52 relating to applications for leave to appeal were contained in Division 1 of 0.52. That Division was headed "Application for leave to appeal", An application for leave to appeal was to be substantially in accordance with Form 54 to the Rules and the respondent to the application was required to enter an appearance. The application was to be determined "by the Court or a Judge". With effect from 15 July 1985, substantial alterations were made to 0.52 with respect to applications for leave to appeal. The heading to Division 1 was altered to read "Leave to appeal from judgments other than interlocutory judgments of the Court". A new rule 2A was inserted in Division 1. That rule provided:- "This Division applies to an application for leave to appeal from a judgment other than an interlocutory judgment of the Court." In each of the heading to Division 1 and in r.2A a_ contrary intention appears and of necessity the word "Court" appearing therein means the Court constituted by a single Judge exercising the original jurisdiction of the Court. The other provisions of Division 1 remained in a form similar to those in effect prior to 15 July 1985. With effect from 15 July 1985, a new Division 1A was inserted into 0.52. That Division is set out in full:- "Division 1A - Leave to appeal from Interlocutory Judgments of the Court Rule 10 Leave to appeal from interlocutory judgments of the Court (1) 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 or within such further time as that Judge may fix. (2) Where an application has not been made in accordance with sub-rule (1), any application shall be made by motion on notice in the proceeding, and the provisions of Order 19 shall apply. (3) An applicant under sub-rule (1) or (2) may present his case and his argument to the Court in writing pursuant to rule 15A." As with the heading to Division 1 and with r.2A, in the heading to Division 1A and in r.10, the word "Court", of necessity, refers to the Court constituted by a single Judge exercising the original jurisdiction of the Court. In sub-rule 10(2) the word "proceeding" refers to the proceeding in which the interlocutory order was made. In the present case, the respondents, seeking leave to appeal, did not make application orally to the Judge who made the interlocutory orders. They have made application by Motion in the proceeding in which the interlocutory order was made but have purported to have the motion heard and determined by a Full Court. That is in a form which is not authorised by the Rules and is inconsistent with the Rules since it purports to increase appellate jurisdiction of the Court where the Rules make provision for the motion to be heard within the original jurisdiction of the Court. The provisions of 0.52 r.10 are in conformity with the policy of -sub-section 24(1A) of the Act. The motion before the Full Court illustrates the way in which the hearing and determination of a proceeding within the original jurisdiction of the Court can be delayed while an application for leave to appeal from an interlocutory order in that proceeding is pending before the Full Court. The interlocutory orders were made on 13 August 1986. The first sittings of a Full Court in Melbourne after that date commenced on 10 November 1986. The motion for leave to appeal was heard and determined on that day. I agree with the observations of Sweeney and Keely JJ. relating to a speedy trial of the proceeding. In Reid v. Nairn 60 A.L.R. 419 a Full Court of the Federal Court expressed the opinion that a person seeking leave to appeal from an interlocutory order of the Court had the option to make application to a Full Court or to the Court constituted by a single Judge. Judgment in that case was published on 7 June 1985, namely before 0.52 r.2A and Division 1A and r.10 were first inserted into the Rules. Since 15 July 1985, on a number of occasions, Full Courts have applied the opinion expressed in Reid v. Nairn, but in none of those cases has there been a discussion relating to the effect of 0.52 r.10 on that opinion. Havirig regard to the provisions of Division 1 and Division 2 of 0.52 of the Federal Court Rules, itis my opinion that the motion that came on for hearing before this Full Court was incompetent and was rightly refused with costs. If the motion was competent, it was rightly refused with costs for the reasons expressed by Sweeney and Keely JJ. I certify that this and the six preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice R.M. Northrop. wee CG Dearelle_ Associate ..yer. Qo i cee ee ect ee neces 21 November VG 295 OF 1986 Counsel for the Applicants: Dr. C.N. Jessup Solicitors for the Applicants: Mallesons Counsel for the Respondents: Mr. R. Merkel Q.C. Mr. P.L. Mc Curdy Solicitors for the Respondents: Russell Kennedy & Cook Date of hearing: 10 November, 1986