Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Wong [2002] FCAFC 327
Outcome: discussed
The Sharman applicants sought to emphasise the existence of practical burdens imposed by the orders made by Moore J on 17 November 2005, although in reality it was principally with respect to the order for cross-examination of Ms Hemming to which that assertion was directed. They maintained that the requirement to appear for cross-examination was not analogous to the 'routine steps' of swearing an affidavit during the normal course of a trial and entering the witness box to answer questions related to its contents. Rather, the requirement to be cross-examined on an asset disclosure affidavit was said to be 'at the extreme end of the Court's armoury', by virtue of the fact that the making of an order for cross-examination on an affidavit of this kind is predicated upon the Court having implicitly found the deponent of that affidavit to be in contempt of court. I was referred by the Sharman applicants to an earlier Full Federal Court decision in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Wong [2002] FCAFC 327 in support of their submission that since the present circumstances give rise to an important question of principle, leave to appeal should be readily granted. 10 The affidavit filed in support of the application for leave to appeal by Mr Rohan Higgins, the solicitor for the Sharman applicants, contained the following broad submission under the heading '[i]njustice if leave is refused': 'If leave to appeal is not granted then the orders of Moore J will operate and will have to be complied with. Any subsequent challenge to those orders would then be futile and academic. The orders are interlocutory in form but final in the result in relation to the issues raised.' So much is correct as a general statement as to the consequences of his Honour's orders. However, the nature and context of the application for leave here involved in practical terms an appeal, or virtually so, as will hereafter emerge. 11 The Music companies contended that the Sharman applicants' submissions proceeded in reality 'on the erroneous basis that every interlocutory decision that requires a party to do an act will be automatically susceptible to leave to appeal and to being stayed'. The Music companies' position was that the orders requiring Ms Hemming to file an affidavit disclosing the assets of Sharman Networks, and to attend for cross-examination on the affidavit she had earlier sworn as to disclosure of her assets, were merely procedural in nature and therefore, incapable as such of determining any final rights of the parties. So much accorded with Moore J's understanding of the nature of those orders, as indicated in [30] of his Honour's reasons for judgment. 16 The Sharman applicants further submitted that the Full Court 'regularly' grants leave to appeal where it can be shown that the exercise of a discretion has miscarried, and where that miscarriage in the exercise of a discretion involves an important question of principle, citing as authority Wong at [22]. In Wong , the Full Federal Court held that the primary judge had failed to correctly apply the relevant legal test grounding the order made below. No mention was made by the Full Court of the need to establish 'substantial injustice' before a grant of leave to appeal is to be made. Counsel for the Music companies submitted in response that Wong was of no assistance, since it was a decision made as a result of the primary judge having ordered the filing of interrogatories in the absence of evidence from the party sought to be interrogated going beyond a 'mere allegation'. So much was said to stand in contrast with the considerable array of evidence provided respectively to Wilcox, Lindgren and Moore JJ at various interlocutory stages concerning Ms Hemming's control of the Sharman companies and a related and involved trust estate. In any event the Music companies submitted that the Court's decision in Wong must be read subject to the later reasons of the Full Court in Brilliant Digital , which required inter alia that 'substantial injustice' be shown. There is in my opinion clear force in those submissions of the Music companies.