Cheeser, M. v Ingram Cleaning Services Sytems Pty Limited

[1993] FCA 82

l'3C13

JUDGMENT NO. ........ ........ .. \ b b . . I . . . .

IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 903 of 1992

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GENERAL DIVISION )

BETWEEN:  MICHAEL CHEESER

First Applicant/Cross-Respondent

JOHN WILLIAM SPIERS

Second Applicant/Cross-Respondent

MACKS-PROVAC PTY LIMITED

(Receiver & Manager Appointed)

Third Applicant/Cross-Respondent

MACKS-PROVAC (QLD) PTY LIMITED

Fourth Applicant/Cross-Respondent

MACKS-PROVAC (VIC) PTY LIMITED

Fifth Applicant/Cross-Respondent

AND : INGRAM CLEANING SYSTEMS PTY

LIMITED

First Respondent/Cross-Claimant

INGRAM INDUSTRIES PTY LIMITED

Second Respondent/Cross-Claimant

JOHN McGREGOR INGRAM

Third Respondent

GORDON MCCALL INGRAM

Fourth Respondent

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U .. Note: Settlement and entry of orders is dealt with in
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IN THE FEDERAL COURT OF AUSTRALIA )

JUDGE BULKING ORDERS:	FOSTER J
DATE :	26 FEBRUARY 1993
PLACE :	SYDNEY

FEDERAL COURT OF

MINUTE OF ORDERS AUSTRALIA PRINCIPAL REQlSTRl

THE COURT ORDERS THAT:

1.    Leave be granted to the applicants to file and serve a notice of appeal within 21 days;

Costs this application costs the

appeal.

)

NEW SOUTH WALES DISTRICT REGISTRY 1 No. NG 903 of 1992

i

GENERAL DIVISION 1

J3ETWEEN:  MICHAEL CHEESER

First Applicant/Cross-Respondent

JOHN WILLIAM SPIERS

Second Applicant/Cross-Respondent

MACKS-PROVAC PTY LIMITED

(Receiver & Manager Appointed)

Third Applicant/Cross-Respondent

MACKS-PROVAC (QLD) PTY LIMITED

Fourth ~pplicant/Cross-Respondent

MACKS-PROVAC (VIC) PTY LIMITED

Fifth Applicant/Cross-Respondent

AND : INGRAM CLEANING SYSTEMS PTY

LIMITED

First Respondent/Cross-Claimant

INGRAM INDUSTRIES PTY LIMITED

Second Respondent/Cross-Claimant

JOHN McGREGOR INGRAM

Third Respondent

GORDON McCALL INGRAM

Fourth Respondent

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... c0Ri.H:	FOSTER J
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. ' 'DATE: !, . : -, -.2 6 FEBRUARY 199 3

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' . PLACE:	;:y.,: SYDNEY
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> ReASONS FOR JUDGMENT

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HIS HONOUR: This application is brought by the applicants in the proceedings, pursuant to 0 52 r 15(2), for an order granting them leave to file and serve a notice of appeal. The decision in respect of which such leave is sought is the judgment of Spender J given on 7 May 1992, whereby his Honour dismissed the applicants' application and granted relief to the respondents on the cross-claim.

These proceedings were heard by his Honour ex parte in the absence of any of the applicants. The applicants wish to appeal against his Honour's decision dismissing their application and also in respect of the judgment given against them in the respondents' cross-claim. They failed to file notice of appeal within 21 days after the pronouncement of his Honour's judgment. This application seeking leave to file a notice of appeal was made on 9 October 1992. Accordingly, a very considerable period of time has elapsed from the date of his Honour's judgment until the commencement of these proceedings. The granting of leave is opposed by the respondents.

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The applicants have availed themselves of the procedure provided for in 0 52 r 15(3). The first applicant

has presented his case and argument to the Court in writing pursuant to that sub-rule and has also filed a supporting affidavit as required by sub-r (6). A short statement in reply has been filed by the respondents.

The substance of 0 52 r 15 (2) is that " . . .the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." The concept of "special reasons" in this rule was fully considered in Jess v $cott &

(1986) 12 FCR 187 by a Full Court of this Court. The
phrase was given a broad interpretation, after a comprehensive
consideration of earlier authorities. Their Honours said (at

"What is needed to justify an extension of time is indicated in r 15(2) by the words 'for special reasons'. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this."

The applicants' case, supported by affidavit, is that all applicants wish to proceed in respect of the case brought fgainst the respondents by the statement of claim. The case appears to be a fairly complex one. There is no need

to refer to the nature of it in these short reasons. There is	nothing placed before the Court at this stage to indicate that
it was not commenced bona fide with an intention that it be proceeded with. The applicants' statement indicates that the solicitor originally handling the matter for them was unable to continue. The matter was then handed over to another solicitor. A third solicitor was engaged by the first applicant to act in relation to certain criminal proceedings brought by one of the respondents against him. It seems clear that these latter proceedings related to an alleged improper use of an industrial machine said to be the property of the respondents, but claimed by the applicants to be their property. One of the orders made by Spender J was a declaration as to ownership of this piece of property in the respondents. In the circumstances it was made ex parte. The applicants are concerned as to the existence of such an order, not only from the point of view of the civil proceedings but also as to what effect it may have in the criminal proceedings.
It seems clear that the applicants were not able satisfactorily to put their second solicitor in funds both in relation to the civil proceedings, because of the need to fund the criminal proceedings. The result was that that solicitor filed a notice of ceasing to act in relation to the civil proceedings. This notice was filed prior to the hearing before S~ender J. The applicants say that they were not aware that the matter was set down for hearing by the Court on that
undertaking that he would acquaint the applicants with the day. It is to be noted that the second solicitor gave an
existence of the hearing date. There is no evidence that he complied with this undertaking or was able to do so. It is not clear on the material placed before me as to how it was that the applicants were unaware. There is reference to the third solicitor being aware of the hearing date but it does not appear that this occurred before the hearing date. It does appear, however, that the first applicant, who appears substantially to have had the carriage of the matter on behalf of the applicants, was resident at relevant times at Adelaide and later at Melbourne and only came to Sydney at irregular intervals for the purpose of appearing in the criminal proceedings being heard before a magistrate.
Although the evidence is sparse, I am prepared to accept that the first applicant was unaware of the hearing date before Spender J and, had he known, would have sought to prevent the course of events which in fact occurred. I note that he had requested his solicitor to arrange generally for an adjournment of the civil proceedings pending the disposal of the criminal proceedings.
I am satisfied, also, that the first applicant was only made fully aware of what had occurred on 7 May when there was served upon him the relevant orders of the Court. This service yas effected on 29 September 1992. Thereafter it appears he acted promptly to bring these present proceedings
time. for the granting of leave to file a notice of appeal out of
I think a case has sufficiently been made for the existence of "special reasons". I propose to make the order sought. In the circumstances I think I should allow 21 days for the filing and serving of the notice of appeal.
I therefore order that the applicants be granted leave to file and serve a notice of appeal from the judgment of Spender J given on 7 May 1992. I further order that the costs of this application be costs in the appeal.

I certify that this and the preceding five ( 5 ) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate: XL&

Date:  26 FEBRUARY 1993