All Districts Coating Pty Ltd v Barhoum - [2009] FCA 46

FEDERAL COURT OF AUSTRALIA
All Districts Coating Pty Ltd v Barhoum [2009] FCA 46
PRACTICE AND PROCEDURE – second application for extension of time in which to file and serve notice of appeal – whether special reasons exist justifying a grant of leave
Held: application dismissed
Federal Court Rules
Workplace Relations Act 1996 (Cth)
All Districts Coating Pty Ltd v Barhoum (2008) FCA 1757
Clairs Keeley (a firm) v Treacy (2004) 29 WAR 479
Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315
Nominal Defendant v Manning (2000) 50 NSWLR 139
Wentworth v Rogers (unreported, Sup Ct, NSW, Sperling J, SC 19228 of 1982, 28 April 1995)
ALL DISTRICTS COATING PTY LTD, ALL DISTRICTS COATING (AUST) PTY LTD and CARLOS HABIBEH v EAD BARHOUM
NSD 1954 of 2008
JAGOT J
27 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1954 of 2008

BETWEEN:
ALL DISTRICTS COATING PTY LTD
First Applicant

ALL DISTRICTS COATING (AUST) PTY LTD
Second Applicant

CARLOS HABIBEH
Third Applicant

AND:
EAD BARHOUM
Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

27 JANUARY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve a notice of appeal is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1954 of 2008

BETWEEN:
ALL DISTRICTS COATING PTY LTD
First Applicant

ALL DISTRICTS COATING (AUST) PTY LTD
Second Applicant

CARLOS HABIBEH
Third Applicant

AND:
EAD BARHOUM
Respondent

JUDGE:

JAGOT J

DATE:

27 JANUARY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for an extension of time in which to file and serve a notice of appeal from judgments of the Federal Magistrates Court given on 22 February and 11 July 2008. The extension of time is required because a notice of appeal was not filed and served within the time prescribed by Order 52 r 15 of the Federal Court Rules which provides that a notice of appeal shall be filed and served within 21 days after the relevant date, subject to Order 52 r 15(2) that the Court or a judge for special reasons may, at any time, give leave to file and serve a notice of appeal.
In the written submissions on behalf of the respondent to the notice of motion, reference is made to the decision of Middleton J in Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795 at [9]. That paragraph sets out the relevant principles in relation to special reasons as referred to in Order 52 r 15(2) and I adopt the statement set out therein, namely that:
In determining whether special reasons exist, something out of the ordinary is required: see Jess v Scott (1986) 12 FCR 187

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 46
Decision Date: 27 January 2009

CaseChat Overview and Summary

All Districts Coating Pty Ltd initiated legal proceedings against Barhoum in the Supreme Court of New South Wales. The dispute centred around the terms of a contract for the supply and application of a coating product, with allegations of breach of contract and other related claims. Barhoum contested the claims, leading to a need for judicial determination of the issues at hand.

The legal issues before the court included whether All Districts Coating was entitled to an extension of time to file and serve a notice of appeal. The primary focus was on whether the application for an extension was made within a reasonable time and whether there were exceptional circumstances justifying the delay. The court had to assess the evidence and arguments presented by both parties to determine the validity of the application.

In its reasoning, the court considered the relevant statutory provisions and case law regarding extensions of time for appeals. It found that the application for an extension was not made within a reasonable time and did not present exceptional circumstances. Consequently, the application was dismissed. The court emphasised the importance of adhering to statutory timelines and the need for compelling reasons to justify any deviation from these requirements. The final orders of the court were as stated above.

Orders

Orders of the court

1. The application for an extension of time in which to file and serve a notice of appeal is dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JAGOT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1954 of 2008

JUDGE:	JAGOT J
DATE OF ORDER:	27 JANUARY 2009
WHERE MADE:	SYDNEY

JUDGE:	JAGOT J
DATE:	27 JANUARY 2009
PLACE:	SYDNEY