FEDERAL COURT OF AUSTRALIA Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Limited (ACN 064 567 040) [2006] FCA 170 DELOITTE TOUCHE TOHMATSU, MOXLABIA PTY LTD (ACN 003 564 716), GREENWOOD CHALLONER & CO, ALLAN MARTIN DELANEY AND AM DELANEY NOMINEES PTY LTD (ACN 001 832 015) v JP MORGAN PORTFOLIO SERVICES LIMITED (ACN 064 567 040) NSD 2292 OF 2005 MADGWICK J 24 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2292 OF 2005 BETWEEN: DELOITTE TOUCHE TOHMATSU FIRST APPLICANT MOXLABIA PTY LTD (ACN 003 564 716) SECOND APPLICANT GREENWOOD CHALLONER & CO THIRD APPLICANT ALLAN MARTIN DELANEY FOURTH APPLICANT AM DELANEY NOMINEES PTY LTD (ACN 001 832 015) FIFTH APPLICANT AND: JP Morgan Portfolio Services LIMItEd (Acn 064 567 040) RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 24 FEBRUARY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal is granted. 2. Costs will be costs in the cause of the appeal. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2292 OF 2005 BETWEEN: DELOITTE TOUCHE TOHMATSU FIRST APPLICANT MOXLABIA PTY LTD (ACN 003 564 716) SECOND APPLICANT GREENWOOD CHALLONER & CO THIRD APPLICANT ALLAN MARTIN DELANEY FOURTH APPLICANT AM DELANEY NOMINEES PTY LTD (ACN 001 832 015) FIFTH APPLICANT AND: JP Morgan Portfolio Services Ltd (Acn 064 567 040) RESPONDENT JUDGE: MADGWICK J DATE: 24 FEBRUARY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: 1 In this application for leave to appeal it seems to me that leave should be granted. It appears that there is a difference of approach between the New South Wales Court of Appeal and the Full Court of the Western Australia Supreme Court, and which approach is taken might well influence the outcome of the application for a permanent stay of the respondent's suit (which is the matter at issue). Wilcox J preferred the approach of the New South Wales Court of Appeal. It seems to me, nevertheless, that the matter is reasonably arguable, and it is desirable in the public interest, and because of the general importance of the matter, that the Full Court should rule on the matter. 2 The applicant for leave does not press before me an application for a stay of proceedings pending the hearing of the appeal, but accepts that the appropriate forum to consider that issue, if it is to be pressed, is before the docket judge. The respondent to the application, as I understand it, takes no different view. 3 Accordingly leave will be granted. 4 Costs will be costs in the cause of the appeal. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 6 March 2006 Counsel for the Applicant: Mr D Hammerschlag SC/Mr A P Spencer Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr J Stoljar Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 February 2006 Date of Judgment: 24 February 2006