Case: Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184
Outcome: followed
In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 ; Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 ; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441). In Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 Burchett J observed at 4,186: In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. Such observations were adopted by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399. 104 In considering whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong, the Court notes that a refusal to grant leave to appeal to Triad would result in the extinguishment of Triad's action against BGR. However, the considerations of sufficient doubt and substantial injustice 'bear upon each other' ( Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 per Burchett J at 4,186). It follows that, supposing the primary Judge's decision to be wrong, the level of injustice suffered by Triad would need to be substantial before the Court could exercise its discretion to grant leave from the primary Judge's decision. In light of the Court's above findings regarding the lack of doubt attending such decision, the Court does not consider that such threshold of substantial injustice has been reached. 105 For the above reasons the Court dismisses the application for leave to appeal from the decision of the primary Judge dismissing the slip rule application. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 8 May 2008 Counsel for the Applicant: Mr Coles QC with Mr Docker Solicitor for the Applicant: Mr Quigley Counsel for the First and Second Respondents: Mr Alkadamani Solicitor for the First and Second Respondents: Mr Hayward Solicitor for the Third, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: Mr Hirst Solicitor for the Fourth Respondent: Cordato Partner Lawyers Date of Hearing: 27 &amp; 29 February 2008 Date of Judgment: 8 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/617.html