JUDGMENT No, 20>7sS—> LIMITED CIRCULATION CATCHWORDS PRACTICE AND PROCEDURE - Motion for extension of stay of proceedings and for leave to appeal - whether orders subject of application for leave to appeal were final orders. Federal Court of Australia Act 1976: s. 24(1A) SCAREL PTY. LIMITED v. CITY LOAN & CREDIT CORPORATION PTY. LIMITED G513 of 1986 IAN FRANCIS YATES v. CITY LOAN & CREDIT CORPORATION PTY. LIMITED G277 of 1987 IAN FRANCIS YATES v. CITY LOAN & CREDIT CORPORATION PTY. LIMITED B371 of 1987 LOCKHART, SHEPPARD and MORLING JJ. SYDNEY 17 FEBRUARY 1988 co NEW SO GENERAL DIVISION COURT: DATE: PLACE: LIMITED CIRCULATION B é No. EL PTY. GIMITED CITY LOAN & CREDIT CORPO LIMITED No. G513 of 1986 Applicant ION PTY. Respondent G277 of 19 IAN FRANCIS YATES Applicant CITY LOAN & CREDIT CORPORATION PTY. LIMITED I. FRANC No. Respondent B371 of 1987 YATES Debtor CITY LOAN & CREDIT CORPORATION PTY. LIMITED Creditor Lockhart, Sheppard and Morling JJ. 17 February 1988 Sydney MINUTE OF ORDER THE COURT ORDERS THAT: The order made by this Court on 11 December 1987 dismissing proceeding G513 of 1986 and the order as to costs made on that date be stayed until the determination of the appeal from the judgment of Gummow J. of 10 February 1988 in proceedings G513 of 1986, G277 of 1987 and B371 of 1987 or until further order of the Court; The hearing of the appeal from the judgment of Gummow J. of 10 February 1988 be expedited; and Costs of the motion shall be costs in the appeal. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. REASONS FOR JUDGMENT THE COURT The Court has before it a motion by Ian Francis Yates in proceeding G513 of 1986 to which the parties are Scarel Pty. Limited ("Scarel") as applicant and City Loan & Credit Corporation Pty. Limited ("City Loan") as respondent. Mr. Yates is not a party to that proceeding. Mr. Yates seeks two orders in his motion: first, that a stay of proceedings granted by a single Judge of this Court (Gummow J.) on 11 December 1987 be extended until the determination of the substantive motion for leave to appeal which is before us today. The second order sought by Mr. Yates is an order that leave be granted to appeal from the judgment of Gummow J. given on 10 February 1988 in matters numbers G513 of 1986, G277 of 1987 and B371 of 1987. In the two last-mentioned matters the parties are Mr. Yates and City Loan. Guamow J. had before him on 10 February 1988 motions seeking an order that the orders of the Court of 11 December 1987 be set aside and that in lieu thereof there be substituted orders consolidating the three proceedings to which reference hs been made; an order granting leave to Mr. Yates to continue the consolidated proceedings in the name of the company Scarel and an order granting him leave to be substituted as applicant in proceeding G513 of 1986. Gummow J.'s previous order of 11 December 1987 had been that proceeding G513 of 1986 be dismissed, the applicant Scarel to pay the costs of the respondent City Loan in the proceedings as agreed or as taxed. That order was made by consent. Gummow J. also ordered on that occasion that the order then made not be entered before 4.00 p.m. on 17 - taf y ", 3. December 1987. The motions which were before Gummow J. were filed prior to the date on which the order for dismissal made on 11 December could be entered and no steps have since been taken to enter that order. On 10 February Gummow J. considered the various motions before him and ordered that the application by Mr. Yates for leave to continue proceeding G513 of 1986 on behalf of and in the name of Scarel be dismissed. His Honour observed that it followed that the balance of the applications also failed. In the result, his Honour said that the previous order of the Court for dismissal of proceeding G513 of 1986 made on 11 December should proceed to entry. His Honour also made orders as to costs. At the outset of the hearing of the motion before us for leave to appeal and for a stay, counsel for Mr. Yates, alithough seeking leave to appeal from Gummow J.'s judgment, submitted that there is no necessity for that leave to be granted because the orders of Gummow J. are final orders. The solicitor appearing for City Loan submitted to the contrary. With the consent of the parties, the Court first heard argument as to whether or not the orders the subject of the application for leave to appeal were final orders. Sub-section 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. The question whether a judgment is final or interlocutory 15 one which has been the subject of considerable judicial comment and has been productive of difficulty. The test to be applied to determine whether a judgment 15 final or not is whether it finally determines the rights of the parties. That test requires the Court to have regard to the legal rather than the practical effect of the judgment. This was the essence of the decisions of the High Court in Licul v. Corney (1976) 50 A.L.J.R. 439; Port of Melbourne Authority v. Anshun Pty. Limited (1981) 147 C.L.R. 35 and Carr v. Finance Corporation of Australia Limited CNo. ij (1981) 147 C.L.R. 246. Mr. Yates is not a party to proceeding G513 of 1986, but he has sought an order of the Court that he be given leave to continue that proceeding on behalf of Scarel. As Gummow J. pointed out in his reasons for judgment of 10 February, the result of the refusal of leave is that the order of 11 December 1987 dismissing proceeding G513 can proceed to entry. In the result, the legal effect of the Court's order of 10 February is both to deny leave to Mr. Yates to continue proceeding G513 and to decline to set aside the consent judgment of 11 December dismissing proceeding G513. In those circumstances 1t is the opinion of the Court that the judgment of Gummow J. finally determined the rights of the parties, when the effect of the judgment is characterised according to its legal rather than its practical effect. It follows that the judgment of Gummow J. was final in nature. Leave to appeal is therefore not necessary. There remains the other portion of the motion before the Court, namely, the motion to stay the entry of the order made by consent on 11 December 1987. Mr. Yates seeks an order that the stay Operate until the determination of the appeal from Gummow J.'s 5. judgment of 10 February 1988. The Court is of the opinion that sufficient has been said to show that there is an arguable case to be raised in support of the appeal and accordingly thinks that the stay should be granted. The Court expresses no views, of course, on the ultimate success or otherwise of the arguments which have been foreshadowed before us as being the matters that will be raised in the appeal. The order of the Court is that the order made by this Court on ll December 1987 dismissing proceeding G513 of 1986 and the consequential order for costs be stayed until the determination of the appeal from the judgment of Gummow J. of 10 February 1988 or until further order of the Court. The costs of the motion today should be costs in the appeal. The Court also orders that the hearing of the appeal from the judgment of Gummow J. of 10 February 1988 be expedited. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Court. Date: 17 February 1988 Counsel for the applicant: Mr. J.P. Hamilton with Mr. R. K. Eassie Solicitors for the applicant: Snelgrove, Mucsnik & O'Brien Solicitors for the respondent: Mr. R. Anderson of Lane & Lane Date of Hearing: 17 February 1988 Date of Judgment: 17 February 1988