Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47

Because the proposed leave application was not a clear case for either grant or refusal, raised a respectable issue about the construction of O 15A r 6(b), involved a refusal of preliminary discovery that had some substance as effectively final for the issue before Tamberlin J, and because uncertainty about appeal rights from a single judge's refusal of leave favoured Full Court consideration in non-clear cases, the notice of motion should be referred to a Full Court. The Court was not persuaded that any special need for expedition had been established.

Jurisdiction
Australia
Judgment Date
01 February 2008
Procedural Posture
Application for Leave to Appeal From Interlocutory Judgment Refusing Preliminary Discovery / Notice of Motion Seeking Referral of the Leave Application to a Full Court, Concurrent Hearing of Leave and Appeal, and Expedition
Outcome
Notice of motion referred to a Full Court; parties directed to be ready to fully argue an appeal if the Full Court so decides; expedition not ordered.
Legal Topics
['leave to Appeal' 'referral to Full Court' 'order 52 Rule 2 Aa' 'preliminary Discovery Under Order 15 a Rule 6' 'interlocutory Judgments' 'expedition']
['civil Procedure' 'appellate Procedure' 'preliminary Discovery'] ['leave to Appeal' 'referral to Full Court' 'order 52 Rule 2 Aa' 'preliminary Discovery Under Order 15 a Rule 6' 'interlocutory Judgments' 'expedition']

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Procedural Posture

Application for Leave to Appeal From Interlocutory Judgment Refusing Preliminary Discovery / Notice of Motion Seeking Referral of the Leave Application to a Full Court, Concurrent Hearing of Leave and Appeal, and Expedition

Legal Issues

  1. 1 ['Whether the application for leave to appeal should be heard and determined by a Full Court rather than a single judge under O 52 r 2AA.' 'Whether the application for leave to appeal should be heard at the same time as the substantive appeal.' 'Whether the application for leave to appeal and any appeal should be expedited.' 'Whether refusal of preliminary discovery is merely a matter of practice and procedure or may have effectively final consequences.' 'Whether the proposed appeal presented a clear case for grant or refusal of leave.']

Ratio Decidendi

Because the proposed leave application was not a clear case for either grant or refusal, raised a respectable issue about the construction of O 15A r 6(b), involved a refusal of preliminary discovery that had some substance as effectively final for the issue before Tamberlin J, and because uncertainty about appeal rights from a single judge's refusal of leave favoured Full Court consideration in non-clear cases, the notice of motion should be referred to a Full Court. The Court was not persuaded that any special need for expedition had been established.

Court Disposition

Notice of motion referred to a Full Court; parties directed to be ready to fully argue an appeal if the Full Court so decides; expedition not ordered.

Orders

  • ['The notice of motion be referred to a Full Court.' 'Although it will be a matter for the Full Court to decide whether to hear the substance of an appeal at the same time as the application for leave to appeal the parties are to be in a position to fully argue an appeal if the Full Court so decides.' 'The parties...