A [a pseudonym] v E Co [a pseudonym]

1. [1]

   THE COURT: The applicant seeks leave to appeal from interlocutory orders made by a Judge of the Equity Division (Ward CJ in Eq) on 14 May 2018 and on 25 May 2018. [1] The effect of the orders is that the hearing of the proceedings in the Equity Division is to be reopened to permit further evidence, including expert evidence, to be adduced and further submissions to be advanced as to the final orders that should be made. The orders provide for the matters to be relisted on 19-21 November for a three day hearing. Detailed directions have been given for the conduct of the hearing.

2. [2]

   The primary Judge delivered a 319 page judgment on 13 April 2018 following a trial occupying twenty-one hearing days. [2] The applicant says that in the Principal Judgment her Honour made detailed factual findings and reached a “considered and final determination” of the relief that should be granted. The applicant’s complaint is that in these circumstances it was not open to her Honour to accede to the respondents’ contention that the hearing should be reopened. According to the applicant, the primary Judge fell into error by allowing the respondents in effect to revisit matters that were the subject of finding and rulings in the Principal Judgment.

3. [3]

   At the conclusion of the hearing the Court ordered that the application for leave to appeal be dismissed with costs and reserved the Court’s reasons. These are the reasons of the Court.

Background

1. [4]

   Despite the great volume of material generated by this case the background can be stated briefly.

2. [5]

   The applicant is the father of three of the five respondents. The other two are corporations (referred to as “E Co” and “EM Co”) in which one or more of the three individual respondents have interests. The respondents commenced proceedings in the Equity Division claiming, among many other contentions, equitable relief in the nature of proprietary estoppel. The respondents sought declarations that the applicant held certain farming and other properties on trust for the individual respondents. The respondents also sought orders that the applicant transfer the properties and other assets to them.

3. [6]

   The applicant filed a cross-claim seeking orders for the payment of rent founded on an agreement for lease and for repayment of moneys allegedly due to the applicant by one or other of the respondents.

4. [7]

   At the time the cross-claim was filed the applicant was in prison having been convicted of a number of sexual offences committed against his grandchildren. It does not appear that the applicant sought or was granted leave to file the cross-claim as the Felons (Civil Proceedings) Act 1981 (NSW) seems to require, although no point has been taken about the absence of leave. [3] Nor does any point appear to have been taken, prior to the hearing in this Court, as to the possibility that leave might be required under that Act to bring this application for leave (something which was considered but not determined in Patsalis v State of New South Wales [4] ). It is because of the prohibition in s 578A of the Crimes Act 1900 (NSW) against publishing any matter identifying the complainants in those proceedings, so as to protect the identities of the victims of the applicant’s criminal conduct, that acronyms have been used to describe the parties to the proceedings, just as they were in the judgments at first instance.

5. [8]

   The primary Judge provided an overview of the dispute in the Principal Judgment. In that overview her Honour summarised her factual findings and explained that she considered it necessary, when formulating relief, to effect a clean break between the parties. Her Honour observed that to achieve this goal: [5]

6. [9]

   At the conclusion of the Principal Judgment the primary Judge explained the orders she considered it appropriate to make. She proposed: [6]

Primary Judgment

1. [10]

   The parties disagreed as to whether the respondents should be able to adduce further evidence to support their submissions as to the final orders the primary Judge should make. In the Primary Judgment her Honour summarised the issues in respect of which the respondents proposed to call evidence: [7]

2. [11]

   The primary Judge explained the competing positions of the parties as follows: [8]

3. [12]

   The respondents supported their contention that they should be permitted to adduce further evidence by suggesting that it might be: [9]

4. [13]

   The primary Judge summarised her conclusions on the respondents’ application as follows: [10]

5. [14]

   Later in the Primary Judgment her Honour explained in more detail the reasons for permitting the respondents to reopen the hearing: [11]

6. [15]

   The primary Judge made the following orders:

The application for leave to appeal

1. [16]

   The essence of the applicant’s submissions on the application for leave to appeal was that the conditions required to reopen the proceedings were not satisfied. The applicant relied on a passage from the judgment of Mason CJ in Autodesk Inc v Dyason (No 2): [12]

2. [17]

   The applicant contended that it was not enough for the primary Judge to point to a “potential error” in the proposed exercise of her discretion nor for her Honour to rely on the possibility that the respondents might have been denied procedural fairness. The principal of finality, so it was argued, requires that the matters proceed to the making of final orders without the primary Judge hearing further evidence.

3. [18]

   The application for leave to appeal is from a discretionary interlocutory decision on a matter of practice and procedure. The principles governing such an application are those stated in Young v Hones (No 2): [13]

4. [19]

   In the present case the primary Judge has not yet made any orders dealing with the substantive relief claimed by the respective parties. The applicant sought to challenge directions that permit the respondents to adduce further evidence in support of their contentions as to the form of relief that is appropriate. At best, the applicant advanced an arguable case that the primary Judge’s discretion to reopen the hearing miscarried (although the applicant’s submissions were not framed in terms of a challenge to a discretionary decision). The applicant would face a formidable barrier in establishing that the discretion miscarried. Although her Honour said only that the respondents “might be said to have been denied procedural fairness”, she appears to have accepted that the respondents were not given an opportunity to be heard in relation to certain orders proposed (but not made) in the Principal Judgment. In any event, the application for leave to appeal does not raise any issue of principle.

5. [20]

   Mr Priestley SC, who appeared with Mr LLoyds for the applicant, submitted that the applicant would suffer injustice if leave to appeal were refused. He identified the injustice as the delay and uncertainty and additional cost that would be experienced before the proceedings were finalised.

6. [21]

   However, if leave to appeal were granted, and the appeal allowed, it is unlikely that this Court would be in a position to make final orders in the proceedings. Mr Priestley accepted that in the event of a successful appeal the matter would have to be remitted to the primary Judge to determine what orders should be made in the light of the parties’ extensive submissions. If leave to appeal were granted and the appeal dismissed, the proceedings would be no further progressed, but the parties would have incurred substantial additional expense and suffered significant delays in finalising the proceedings.

7. [22]

   There is therefore a substantial risk that a grant of leave to appeal would actually prolong this already very lengthy and expensive litigation. For the reasons given by the primary Judge the most efficient and convenient course is for the further hearing to take place before her Honour. She will then be in a position to make final orders taking into account any evidence the parties wish to adduce. It remains open to the applicants to seek a special order as to the costs of the further hearing. If the applicant is dissatisfied with the outcome he will be entitled to appeal as of right. As Mr McInerney SC, who appeared with Mr Kabilafkas for the respondents, accepted, any issue the applicant wishes to raise on his application for leave to appeal affecting the final orders could be dealt with on any such appeal, together with all other issues raised by the appeal (and any cross-appeal).

8. [23]

   It is for these reasons that the Court dismissed the application for leave to appeal.