Amos v Barbi[1998] QCA 78

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6248 of 1997

Brisbane

[Amos v. Barbi]

BETWEEN:

EDWARD AMOS

(Plaintiff) (Applicant)

AND:

NOEL RONALD BARBI

(Defendant) Respondent

Davies J.A.

McPherson J.A.

Muir J.

Judgment delivered 1 May 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL REFUSED WITH COSTS

CATCHWORDS: CIVIL PROCEDURE - Whether leave to appeal necessary - leave to appeal sought from an order of a District Court refusing leave to proceed pursuant to r.377(2) of the District Court Rules - whether the order was final or interlocutory - whether leave to appeal should be given - whether applicant misled by an official in the Registry of the Court of Appeal - whether applicant was compelled to bring an application for leave to proceed - whether it would be a travesty of justice for the applicant to be denied the opportunity to proceed - s.118 District Court Act 1967 - O.90 r.9, O.41 r.3 Supreme Court Rules.

Campbell v. United Pacific Transport Pty. Ltd. & Ors. [1966] Qd.R. 465.

Counsel:  Mr. A.J. Morris Q.C., with him Mr. P.B. O'Neill, for the applicant

Mr. R.W. Gotterson Q.C., with him Mr. P.D. Applegarth, for the respondent

Solicitors:  Keller Nall & Brown for the applicant

Clayton Utz for the respondent

Hearing Date:  22 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6248 of 1997

Brisbane

Before Davies J.A.

McPherson J.A.

Muir J.

[Amos v. Barbi]

BETWEEN:

EDWARD AMOS

(Plaintiff)  (Applicant)

AND:

NOEL RONALD BARBI

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 May 1998

This matter came before this Court by notice of appeal.  Before the hearing the Court notified the parties that it wished to hear argument on whether leave was necessary to appeal pursuant to s.118 of the District Court Act 1967.  That provides, in effect, that leave is necessary to appeal from a judgment of a District Court which is not a final judgment.  The order against which Mr. Amos seeks to appeal was an order of a District Court refusing him leave to proceed pursuant to r.377(2) of the District Court Rules.

Whilst the principle to be applied in determining whether an order is final or interlocutory does not appear to be in doubt (see, for example, Carr v. Finance Corporation of Australia Limited [No.1] (1981) 147 C.L.R. 246 at 248, 256), the application of the principle may sometimes cause difficulty and even apparent inconsistency.  Compare, for example, Port of Melbourne Authority v. Anshun Proprietary Limited (No.1) (1980) 147 C.L.R. 35 with Tampion v. Anderson (1973) 48 A.L.J.R. 11.  Consistency of application of a principle is of paramount importance in matters of this kind.

In Campbell v. United Pacific Transport Pty. Ltd. & Ors. [1966] Qd.R. 465 at 471 Gibbs J. held that an application for leave to proceed under O.90 r.9 of the Rules of the Supreme Court (which is in materially identical terms to r.377 of the District Court Rules) was an interlocutory proceeding within the meaning of O.41 r.3 so that evidence on information and belief was admissible.  It appears to have been accepted, at least since then, that an order made in such a proceeding is an interlocutory one:  see, for example, Gibson v. The Nominal Defendant (Queensland) Appeal No. 3290 of 1996, judgment delivered 19 July 1996 where that was assumed.  Mr. Morris Q.C. who with Mr. O'Neill appeared for Mr. Amos, did not contend to the contrary.

We would therefore conclude that the order made here was an interlocutory order and that consequently leave to appeal was necessary.

The notice of appeal was filed on 14 July 1997 prior to the commencement on 1 August 1997 of amendments to s.118.  Relevantly they deleted the requirement that leave shall not be granted unless some important question of law or justice is involved.  However for reasons which will appear it is unnecessary to consider whether the applicant Amos had to establish that some important question of law or justice is involved.

Mr. Morris, in applying for leave, told the Court that he had explicit instructions to advance certain submissions.  The first of these is that the applicant was misled by a person in the Registry in the Court of Appeal into understanding that leave to appeal was not required.  The factual basis of this submission is a letter which Mr. Morris' junior Mr. O'Neill wrote to his instructing solicitor, and which was passed on to the applicant, in which the latter was advised that, in effect, in counsel's opinion leave was necessary but that a contrary opinion had been expressed by an official in the Registry of the Court of Appeal.  Plainly this could not have misled the applicant who was an experienced law clerk and an experienced litigant into believing that leave was unnecessary.  But even if he had been so misled that would not be a ground for now granting leave.

The second submission advanced on instructions is that the applicant was compelled to bring an application for leave to proceed even though he contends that leave was unnecessary.  He says that he was compelled to bring that application in earlier proceedings.  However Mr. Morris advised the Court that he had obtained a copy of the transcript of those earlier proceedings and that there was nothing in the transcript supporting the contention that his client was compelled to apply for leave to proceed.  The proper inference from the transcript, he submitted, was to the contrary.

Finally Mr. Morris said he was instructed to submit that it would be a travesty of justice for his client to be denied the opportunity to proceed with his claim, there being errors at first instance in the determination of the application.  Assuming in the applicant's favour errors at first instance in the determination of the application, such errors would not be sufficient, without more, to justify a grant of leave to appeal.  Here nothing further was contended than that the decision below was wrong.  Without expressing any concluded view on the correctness of the decision below, it is not plainly wrong.  Nor, if it matters, was any important question of law or justice involved.

None of the reasons advanced by Mr. Morris justify the grant of leave to appeal.  We would therefore refuse the application for leave to appeal with costs.