Malouf v Malouf [1999] FCA 284

Malouf v Malouf [1999] FCA 284

The dismissal of the applicant's application for pre-trial discovery was interlocutory because nothing in the relevant rule precluded the applicant from making more than one application, even though a repeated application on the same grounds would likely fail. Accordingly, there was no appeal as of right and leave to appeal was required.

Jurisdiction
Australia
Judgment Date
24 March 1999
Procedural Posture
Application for Leave to Appeal From a Single Judge of the Federal Court of Australia / Preliminary Question Whether Leave to Appeal Was Required or an Appeal Lay as of Right
Outcome
The Court held that the order was interlocutory and that there was no appeal as of right; the motion for leave to appeal was listed for hearing.
Legal Topics
['discovery' 'pre Trial Discovery' 'appeals' 'leave to Appeal' 'interlocutory Judgment' 'final Judgment']
['practice and Procedure'] ['discovery' 'pre Trial Discovery' 'appeals' 'leave to Appeal' 'interlocutory Judgment' 'final Judgment']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a Single Judge of the Federal Court of Australia / Preliminary Question Whether Leave to Appeal Was Required or an Appeal Lay as of Right

Legal Issues

  1. 1 ['Whether an order dismissing an application for pre-trial discovery under O 15A r 5 or O 15A r 6 is interlocutory or final in nature.' 'Whether leave to appeal was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), or whether an appeal lay as of right.']

Ratio Decidendi

The dismissal of the applicant's application for pre-trial discovery was interlocutory because nothing in the relevant rule precluded the applicant from making more than one application, even though a repeated application on the same grounds would likely fail. Accordingly, there was no appeal as of right and leave to appeal was required.

Court Disposition

The Court held that the order was interlocutory and that there was no appeal as of right; the motion for leave to appeal was listed for hearing.

Orders

  • ['The motion for leave to appeal be listed for hearing in the next sittings of the Full Court.' 'The costs to date to be part of the costs of the motion.']