Brookfield v Yevad Products Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Brookfield v Yevad Products Pty Ltd (No 2) [2006] FCA 1377

PRACTICE & PROCEDURE – application for leave to appeal from interlocutory judgment – whether decision attended with sufficient doubt to warrant reconsideration on appeal

HELD – application refused

IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) v YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD ACN 004 813 192)

SAD 220 OF 2006

MANSFIELD J
13 OCTOBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 220 OF 2006

BETWEEN:	IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) Applicant
AND:	YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD ACN 004 813 192) Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	13 OCTOBER 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Application for leave to appeal is refused.

2.Application for extension of time is refused.

3.Applicant pay to the respondent costs of the motion dated 22 September 2006.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 220 OF 2006

BETWEEN:	IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) Applicant
AND:	YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD ACN 004 813 192) Respondent

JUDGE:	MANSFIELD J
DATE:	13 OCTOBER 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 31 August 2006 I gave judgment on one aspect of the applicant's motion of 30 May 2006, by which he sought an order for inspection of certain documents discovered by the respondent.  I refused the application for inspection of those documents and published reasons for that decision.  See Brookfield v Yevad Products Pty Ltd [2006] FCA 1180.

2. By motion of 22 September 2006, the applicant has sought an extension of time within which to seek leave to appeal from that decision, and leave to appeal from that decision, pursuant to O 52, r 10(2A)(b) of the Federal Court Rules.  The present motion seeks that leave only with respect to one of the documents of which inspection was not permitted, namely, a document described as ‘Draft Report prepared by Barry Pinder of Pump Technology Pty Ltd dated 7 August 1995’ and called in these reasons and in the previous judgment ‘the report’.  I will not repeat the information concerning the way in which the report came to be discovered in the previous judgment. 

3. The applicant has sought to explain the delay in seeking leave to appeal beyond the time permitted by the Rules as being through his oversight, or his ignorance of the applicable time limit.  The respondent disputes his claims in that regard.  I do not need to decide that question.  It is plain on the authorities that, in any event, the applicant should not be granted an extension of time within which to appeal if there is no real prospect of the grant of leave to appeal…