nate jy, AUSTRALIA y- With the Complements of Grate SM Hafel BACALL Lion : Guectprents ~Herk Aeypple Corporation ® nou Vi A9cbeow w_Orws, eo. Oa30/ Fey 7 ' ' Aint - Kiger TF. Sivodace. POL UD. | JUDGES' CHAMBERS FEDERAL COURT OF AUSTRALIA 119 NORTH QUAY BRISBANE AUSTRALIA JUDGMENT No. 23.7 DY. CATCHWORDS LEAVE TO APPEAL - Application to strike out dismissed - reasons not provided for all points raised - whether substantial injustice would result if leave to appeal refused Decor Corporation Pty Ltd and Anor v Dart Industnes Inc (1991) 33 FCR 397 Sharp v Deputy Commissioner of Taxation(Cth) (1988) ATC 4 PRINCIPAL REGISTRY No QG3017 of 1992 isba: r 1994 THE E COURT OF AUSTRAL No. QG3017 of 1992 QUEENSLAND DISTRICT REGISTRY N Vv. N BETWEEN: KEPPEL CORPORATION PTY LTD (IN LIQUIDATION) Applicant AND: PETER IVAN FELIX GEROFF and ROBERT JOHN FRED BURNS Second Applicants AND: Cc WALTER LOCKIE WILSO Furst Respondent AND: WILSON L Second Respondent AND: DESMOND WILLIAM KNIGHT Third Respondent AND: PETER JOHN MCKNOULTY AND KERRY PATRICK PRIOR AND WILLIAM DAVID LECKY WHITMAN AND ANDREW JOHN MUIR AND _DONALD_ARTHUR PALMER AND _ DAVID_GRAHAM SEARLES AND PETER JOHN COX AND PETER DAVID LOHRISCH AND_MICHAEL JAMES CUNNINGHAM AND JAMES BRETT LOCHRAN HEADING AND TIMOTHY CLIFTON WHITNEY AND IAN DAVID MICHAEL HUGHES AND # RICHARD THEARLE HART AND BETWEEN: DESMOND WILLIAM KNIGHT Cross Claimant AND: RICHARD WALTER LOCKIE WILSON AND: PETER JOHN MCKNOULTY AND KERR TRI PRIOR AND WILL DAVID LECKY I AN ANDREW_JOHN MUIR D__DONAL THUR PALMER _AND_ DAVID GRAHAM _ SE AND TER JOHN COX ETER DAVI RISC MIC J CUNNING J BRETT LOCHRAN HEADING AND TIMOTHY CLIFTON AV IC L RICHARD THEARLE HART C ss Re dents U OR : Kiefel J DATE OF ORDER: 30 November 1994 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The first, second and fourth respondents pay the applicants' costs of and incidental to the application to be taxed. NOTE: Settlement and entry of orders 1s dealt with m Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA No. QG3017 of 1992 UEENS DISTRICT REGISTR N VISION BETWEEN: TION TD (IN LI ATI AND: PETER IVAN FELIX GEROFF and ROBERT JOHN FRED BURNS Second Applicants Furst Respondent AND: PETER JOHN MCKNOULTY AND KERRY PATRICK PRIOR AND WILL DAVID L WHITMAN ANDREW__JOHN MUIR AN ONALD AR PALMER D DAVID G SEARLES TER JOHN COX P AV O J CUNN J RE ADING TIMO' C WHITNEY AND JAN DAVID MICHAEL HUGHES AND RICHARD THEARLE HART Second Cross Respondents CORAM: _Kiefel J DATE: 30 November 1994 PLACE: Brisbane REASONS FOR JUDGMENT The first, second and fourth respondents seek leave to bring an appeal from the decision of Spender J dismissing their applications to strike out the applicants' statement of claim. The tests generally to be followed raise the questions whether the decision in question is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, assuming the decision to be wrong; see, for example Decor Corporation Pty Ltd and Anor vy Dart Industnes Inc (1991) 33 FCR 397. I consider, for the most part, that it is the second requirement which is not here satisfied. The doubt about the decision is said, by the respondents, to be provided by a failure on His Honour's part to provide reasons save as to the question of causation affecting the fourth respondents, thus converting the matter to an error of law. As a result the applications I heard resembled a muni-hearing. At the conclusion of it I was left with the impression that the complaints properly described were that His Honour, for the most part, did not deal with each point individually, a process by which it was obviously hoped to persuade His Honour that there were so many problems with the statement of claim that it ought to be recast. They were, importantly, pleading points as such and not discrete points of law and the application was to strike out the whole of the statement of claim and not parts of it. It was not apparent to me that the various matters of complaint needed, or could be considered, properly in aggregate. Some of them, such as whether conditions precedent ought to be pleaded and whether the case should be made clearer by provision of further particulars would never by themselves warrant a striking out of the whole pleading. It 1s in that context that His Honour's remarks about not attending to the minutiae ought to be understood. The principal submission of the fourth respondent, and adopted by the first and second respondents, was as to the connection between individual alleged breaches of duty and the loss said to flow from it, the "heart" of the submissions, as the respondents described it. In this respect there were a number of matters pleaded, generally involving failures to advise and which His Honour dealt with by taking one example. The conclusion reached by His Honour was that, in light of the case the applicants wished to mount, one for global loss based on an hypothetical course of action which would have been taken if duties had been observed, they were not required to plead it as the respondents contended they should. It is therefore not, for the most part, that His Honour did not deal with the matter but rather that the respondents do not accept it. No submissions were however made that the law did not recognise a cause of action such as that the applicants plead. His Honour did not deal apparently with criticisms of the particulars of loss and damage. Some could not be dealt with since they were clearly disputes as to the facts themselves pleaded In other respects, the complaints were as to whether sufficient material facts were pleaded. Putting to one side the issue of causation dealt with by His Honour, even if one were to accept that reasons were not in this respect provided when the circumstances called for them, the question then 1s what is the effect on the respondents as a result. There is not here an effect of finality such as was referred to by Burchett J Sharp v uty C issioner_of ation(Cth) (1988) 88 ATC 4, 184 at 4186. It 1s accepted that success on appeal would almost certainly achieve a re-pleading and it is not suggested the applicants are unable to plead their case. The respondents submitted, and I accept, that in complex litigation, and which ts here estimated by some to require six weeks for hearing and to require considerable expert evidence, that the issues ought to be as clearly and narrowly confined as possible but 1 am not satisfied that the process of a lengthy and costly appeal and re-pleading would achieve that. If the parties are left to proceed to trial, directions can be given as to the provision of witness statements including expert witnesses and with respect to the applicants perhaps at an earlier time than usual. Directions might extend to outlines of the case and findings of fact which will be sought. Any mystery, if there remains any in the applicants' case, ought thereby be revealed. The question of causation affecting the fourth respondent, dealt with at length by His Honour, can be regarded as a matter of law which is open. The difficulty with an appeal on that discrete issue, however, 1s as His Honour noted, that the legal questions will draw their colour from the facts as proved. In these circumstances, the applications by the first, second and fourth respondents, for leave to appeal will be dismissed. On the applications for leave to appeal, I order that the first, second and fourth respondents pay the applicants' costs of and incidental to the applications to be taxed. I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Date: 30 November 1994 ry fo avd , Associate Counsel for the applicant: Mr D Jackson QC and Mr P McQuade Solicitors for the applicant: Blake Dawson Waldron Counsel for the first and second respondents: Mr C J L Brabazon QC and Mr A P F Ryan Solicitors for the first and second respondents: Michell Sillar Nicholsons Counsel for the fourth respondent: Mr J Muir QC Solicitors of the fourth respondent: Clayton Utz Date of Hearing: 29 November 1994