Fuji Restaurant Pty Ltd v Port of Melbourne Authority

[1991] FCA 239

JUDGMENT NO. W / 4,. .2

I N THE FEDERAL COURT OF AUSTMiLIA	)
1
VICTORIA DISTRICT REGISTRY	No. VG 10 of 1986

1

GENERAL D I V I S I O N )

FUJI RESTAURANT PTY LTD

Applicant

- and-

PORT OF MELBOURNE AUTHORITY

Respondent

JUDGE :	Heerey J .
PLACE :	Melbourne
m:	2 May 1991

EX TEMPORE REASONS FOR JUD-NT

There is considerable force in the criticism that Mr Archibald QC makes of the delay in this matter but the fact remains that the applicant should ordinarily be given the opportunity of answering the respondent's application to dismiss for want of prosecution.

Mr Archibald very fairly accepted that there was no prejudice that would enure to his client by reason of the short adjournment sought, that is, to 23 May 1991. Also, as Mr Archibald indicates, it is proper that I should have regard to the statement that was made from the bar table by Mt Dixon on behalf of the applicant that there was in his view a reasonable basis for believing that a case might be made out that there was an explanation for the undoubted lengthy delay which has occurred.

notice of motion for hearing on 23 May 1991 and I direct that	application for an adjournment. I'll adjourn the respondent's
any affidavit on behalf of the applicant in opposition to the notice of motion be filed and served on or before 16 May 1991.
I order that the applicant Fuji Restaurant Pty Ltd pay the
costs of today's hearing to be taxed. I also order that the applicant's notice of motion dated 19 April 1991 be adjourned to 23 May 1991.

In those circumstances I think I should accede to the

I certify that this and the preceding page are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

ADwarances

Counsel for the Applicant:	Mr J Dixon
Solicitors for the Applicant:	Ken Beruldsen & Associates
Counsel for the Respondent:	Mr A Archibald QC with Miss E Strong
Solicitors for the Respondent:	Mallesons Stephen Jaques