A - 4 ay J r \ { bb0 i Regge QLD. Gator 1984 IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) ) ) GENERAL DIVISTON BETWEEN : VANCLEVE PTY. LTD. (as Trustee for the VANCLEVE UNIT TRUST) Applicant DOROTBA PTY.LTD,. Respondent DOROTEA PTY. LTD. Cross Claimant VANCLEVE PTY. LTD. (as Trustee for the VANCLEVE UNIT TRUST) Cross Respondent SPENDER J. BRISBANE 12 DECEMBER, 1986. EXTEMPORE REASONS FOR JUDGMENT This is an application for leave to appeal from a judgment which I gave on 19 November 1986 where I refused Dorotea Pty. Limited leave to amend its defence and cross-claim to plead we limitation defences. The application is brought under 0.52 r.10, and I abridge the time required for the hearing of the application for leave, which is referred to in 0.19 r.3. Any appeal will be an appeal from the exercise of a discretion. In Brambles Holdings Ltd. v. Trade Practices Commission (1979) 28 A.L.R. 191, the Chief Judge said at 193 (at a time when leave was not required) :- "In dealing with such an appeal against an exercise of discretion this court will follow established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. Before an appellate court will interfere, it must appear that some error has been made in exercising the discretion: see House v. R. (1936) 55 C.L.R. 499 at 504-5; Lovell v. Lovell (1950) 81 C.L.R. 513 at 532-4; Rodgers v. Rodgers (1964) 114 C.L-.R. 608 at 619-20. Indeed, where the discretion relates toa matter of practice or procedure, an appellate court is even more reluctant to interfere. It has been suggested that in such a case if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice: Re Will of Gilbert (1946) 46 S.R.(N.S.W.) 318 at 323; cf. White v. Grogan (£19721 2 N.S.W.L.R. 347 at 351." The Full Court (Franki, Davies and Morling JJ.) in Superstar Australia Pty.Ltd. v. Coonan & Denlay Pty.Ltd. & Anor. (1981) 40 A.L.R. 183 at 187, said:- "An interlocutory order for an injunction is a matter of practice and procedure: see Adam _ P. Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 55 A.L.J.R. 548 at 550; 35 A.L.R. 625 at 629, per Gibbs C.J., Aickin, Wilson and Brennan Jd. A decision to grant interlocutory relief is an exercise of discretion. The difficulty in the way of an appellant who seeks to challenge an order made in the exercise of such a discretion is fn very considerable. The court then referred to the observations of the High Court in Adam P. Brown Male Fashions Pty. Ltd. v. Philip Morris Incorporated & Anor. (1981) 55 A.L.J.R. 548, where they cited with approval the well-known statement of Chief Justice Jordan, in In re the Will of F.H. Gilbert (deceased) (1946) 46 S.R.(N.S.W.) 318. The Chief Justice stated at p.323:- ",..-l am of opinion that, ... there is a material difference between an exercise of discretion ona point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a_ litigious disposition could, at will, in effect transfer ail exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." Again, in Adam P. Brown Male Fashions Pty.Ltd. v. Philip Morris Incorporated & Anor. (supra), Mr. Justice Murphy said at p.552:- "However when substantive rights are not effectively determined, 'an appellate court should be extremely reluctant to interfere ..." In Reid v. Nairn, an unreported judgment at first instance of Fisher J. on 27 March 1985, his Honour refused an application to appeal from an interlocutory order he had made. He said at p.3:- "{t is however my view Chat the orders which I made were, to the extent at least of the applicant's challenge, orders made in the exercise of ny discretion in a matter of practice or procedure. I did not understand counsel to contend to the contrary. It follows that I should consider the granting of leave to appeal if there appears to be a 'grave or powerful reason' why an appellate court should interfere. It is my understanding that an appellate court will only interfere with the exercise of atrial judge's decision if 'a clear case has been made out that he has acted on some wrong principle or has made an order which works a substantial injustice to one of the parties'. De Mestre v. A.D. Hunter Pty. Ltd. (1960) 77 W.N. (N.S.W.) 143 per Hardie A.J. at page 147." He then referred to Adam P. Brown Male Fashions Pty.Ltd. v. Philip Morris Incorporated & Anor. and In re the Will of F.B. Gilbert (deceased). The application in that case concerned the width of discovery. This present application seeks to challenge the decision I made as to whether an amendment should be permitted to allow the pleading of the limitation period. It is clear that very many interlocutory judgments will involve the exercise of a primary judge's discretion, and this is one such case. There are, however, differing circumstances in which discretionary judgments will have to be made. The present decision involves the disallowance of amendments which may have a substantial bearing on the end result of the case. In that sense, my decision to refuse leave to permit those amendments is not merely procedural nor simply a =) question of practice or evidence. The issue is not trivial, and there is an element of substantive determination about the decision, although it is interlocutory in nature. The second aspect concerns the fact that any appeal will be from the exercise of a discretion. The fact is that judges are disagreeable by nature. Their disagreements, however, are usually the result of careful thought, they are public, and invariably they are polite. I face with equanimity the prospect that other minds may, on appeal, be of the view that the exercise of my discretion was so unreasonable that no reasonable judge could have so exercised it. This is a matter of some significance as it involves a substantial issue between the parties. I am of the opinion that this is an appropriate case, notwithstanding the caveats against interfering with the prompt disposal of judicial business by lightly permitting interlocutory appeals to be pursued, that such a course should be followed. As I mentioned in the course of submissions on this application for leave, there is a matter arising out of the reasons for judgment which I gave ex tempore, which I canvassed with counsel for Dorotea Pty.Limited. The certified reasons for judgment of my ex tempore reasons at p.6 include this sentence:- "IT am satisfied that, by not having had the opportunity to consider what ought properly to be done in the light of that pleading at that time, it has suffered, or may very,well have suffered prejudice that cannot be compensated by costs." That appears in the certified copy of reasons because what I said at the time of delivering that judgment contained, to me, an obvious error. What I had said on that occasion was:- "IT am far from satisfied that ... In the context, particularly in response to the submission which I set out at p.5.7, in settling the extempore reasons, that was an obvious error, and that is why the certified reasons appear as they do. In the circumstances, I propose to grant leave to appeal. | certify that this ands > S proceect—4 paces are a true copy 6! 10 reasons for judgment herein of 1- s bseacr Mr Justice Spenvier Maw Yer—ol " ASSOC.2.8 Dated \zfiz/a8e.