Case: D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor' ) at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 ( 'Brilliant' ). The key considerations are: (1) whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong. Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 583-585 [42] - [45] . 27 The proposed appeals relate to pleading matters and there is no disagreement as to the legal principles which govern the leave applications. It is simply a question of applying the well-established principles stated in D&eacute;cor to the decision and orders made by Finkelstein J. I decline the request to refer the application to the Full Court. In my opinion, the nature of the issue raised by the proposed appeals, the fact that the proceedings have been fixed for trial on 20 November 2006, the orders and directions that Finkelstein J has put in place by way of case management, and the need to ensure an efficient deployment of judicial resources support the conclusion that the application for leave to appeal should be heard and determined by me, and not referred to the Full Court. I also consider that, contrary to the submission made on behalf of Baker &amp; McKenzie, the interests of expedition and efficiency are more likely to be served by the leave application being determined by me as a single judge. 28 Finkelstein J's grant of leave to file and serve the cross claims involved a matter of practice and procedure. It also involved discretionary decisions that fell squarely within the realm of case management. 29 Having considered the submissions made to me, the legal principles summarised above and Finkelstein J's reasons for decision, I am not satisfied that Finkelstein's orders are attended by sufficient doubt to warrant them being reconsidered, or that substantial injustice would result if I refuse leave to appeal. 30 In his reasons for decision, Finkelstein J said that he would be guided in his disposition of the leave application by three factors. The first was that nothing should be done to jeopardise a timely trial of the case, unless that outcome would cause injustice. The second was that he would not insist upon perfect pleadings; but he would not force a defendant to defend a claim which is so badly pleaded that it would cause the defendant to suffer serious injustice, such as where the defendant could not understand the nature of the case that is being pressed or the case is obviously hopeless. The third factor was that he would avoid expressing even tentative views on the merits of the proposed claims, except to the extent that it is necessary to do so in order to strike out any part of the claim that had no real prospect of success. 31 The applicants submitted that Finkelstein J departed from the legal principles that ought to govern the grant of leave to file an amended cross claim. First, and most fundamentally, they submitted that Finkelstein J disregarded the rules of pleading and instead applied an erroneous principle to the effect that he would only refuse leave if the amended cross claims were so badly pleaded that they would cause the cross respondents to suffer serious injustice. 32 In its written submissions, Baker &amp; McKenzie submitted that the correct starting point is that 'a pleading is liable to be struck out if it is liable to prejudice the fair trial of the proceeding by not disclosing the case to be put at trial'. It developed this argument by submitting that Finkelstein J failed to give proper weight to Baker &amp; McKenzie's position in applying this basic requirement. It argued that the pleading was not framed with sufficient particularity, and that Finkelstein J failed to deal with the detailed arguments advanced by Baker &amp; McKenzie as to the deficiencies in the pleading. The gravamen of the submission was that Finkelstein J erred in that he was prepared to tolerate defects in the pleadings, so long as they did not occasion substantial or serious injustice. 33 Munro advanced the same basic argument. It also submitted that, instead of applying proper pleading principles, Finkelstein J applied the strike out test of whether the pleading was obviously hopeless. 34 I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ( 'Akhil' ) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.