Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) stipulates that an appeal shall not be brought from a judgment of the Court constituted by a single judge, being a judgment that is interlocutory in nature, unless the Court or a Judge gives leave to appeal. Although s 24(1A) does not purport to qualify or limit the Court's discretion (see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 in the joint reasons for judgment of Sheppard, Burchett and Heerey JJ), the Courts have developed general principles which inform the exercise of the discretion to refuse or grant leave to appeal from an interlocutory judgment. The rationale for those principles is the public interest in the efficient administration of justice, and the maintenance of 'the integrity and vigour of the procedures of the court, including as they do, the immediate involvement of the judge at all stages in the progress of cases to trial' ( Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 104 ALR 165 at 173, per Gummow J). One consequence sought to be avoided is the expansion of expensive and delaying pre-trial litigation involved in appeals on issues of practice and procedure, and the concomitant reduction in the authority of the trial judge, should such appeals be frequently entertained ( Bomanite at 176, per French J). 7 At least for those reasons, this Court has held on a number of occasions that typically a party seeking leave to appeal from an interlocutory judgment ought to establish, first, that in all the circumstances, the decision from which leave is sought to appeal is attended with sufficient doubt to warrant the same being reconsidered by the Full Court, and secondly, that substantial injustice would result if such leave was to be refused, supposing the decision to have been wrong: see D&eacute;cor at 398. That those two questions were the touchstone of exercise of discretion in matters of this kind was common ground between the parties. I observe that it is well accepted that those criteria are not to be applied rigidly or fixedly, and the Court must bear in mind all of the circumstances of the particular case: see in that regard Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 177, where Gibbs CJ, Aickin, Wilson and Brennan JJ said: 'For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323: "...I am of the opinion that...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a Court of Appeal." ...It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.'