ADI Limited v NQEA Australia Pty Ltd Summary

99.370

COURT OF APPEAL

McMURDO P

Appeal No 3852 of 1999A

ADI LIMITED	Appellant (Respondent)
and
NQEA AUSTRALIA PTY LTD	Respondent (Applicant)
BRISBANE ..DATE 06/09/99
060999 D.1 T9/PB6 M/T COA218/99

THE PRESIDENT: The appellant gave instructions to its solicitors to lodge this appeal within time albeit on the last day for the filing of the appeal, 27 April 1999. The appeal was filed within time and served on the respondent by facsimile within time.

The appeal is from a decision given in the Cairns Supreme Court and the rules required that a copy must also therefore be forwarded to the Registrar of the Supreme Court at Cairns within the time for filing the appeal. Through oversight this was not done. Both the parties have been progressing the appeal in a timely fashion.

The respondent, who has chosen not to appear this
afternoon, does not oppose the order sought with an
appropriate costs order but requested that a letter
from the respondent's solicitors be tendered in these

proceedings. It is Exhibit 1.

In that letter the respondent says it is not to be
taken as conceding that no third party could have
suffered prejudice as a consequence of the failure to
institute the appeal at the appropriate time and it has
listed a number of matters. Those matters do not lead
me to conclude that prejudice has been suffered in this
case.

060999 D.1 T9/PB6 M/T COA218/99

Bearing in mind the respondent's decision not to appear
today, its attitude to this application and the fact
that there is no suggestion that the appeal is not an
arguable one, the order sought by the applicant is in
my view just.

I order that the time for filing the notice of appeal in this case be enlarged until 30 July 1999. I order that the applicant pay the respondent's costs of and incidental to this application.

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CaseChat Overview and Summary

In the matter of ADI Limited v NQEA Australia Pty Ltd, the appellant, ADI Limited, sought to appeal against a decision made by the Cairns Supreme Court. The appeal was lodged on the final day for filing the appeal, 27 April 1999, and was served on the respondent, NQEA Australia Pty Ltd, by facsimile within the required time. However, due to an oversight, the appeal was not forwarded to the Registrar of the Supreme Court at Cairns within the time for filing the appeal, as required by the rules. The respondent has chosen not to appear before the court and does not oppose the order sought, but requests that a letter from the respondent's solicitors be tendered in these proceedings.

The court was required to decide whether the failure to forward the appeal to the Registrar of the Supreme Court at Cairns within the time for filing the appeal would result in the appeal being dismissed. The respondent argued that a third party could have suffered prejudice as a consequence of the failure to institute the appeal at the appropriate time. However, the court was not persuaded that prejudice had been suffered in this case.

The court concluded that, bearing in mind the respondent's decision not to appear before the court, its attitude to this application, and the fact that there is no suggestion that the appeal is not an arguable one, the order sought by the applicant is just. The court therefore ordered that the time for filing the notice of appeal in this case be enlarged until 30 July 1999, and that the applicant pay the respondent's costs of and incidental to this application.

ADI Limited v NQEA Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established