Fuji Restaurant Pty Ltd v Port of Melbourne Authority Summary

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

CaseChat Overview and Summary

The Federal Court of Australia considered a matter between Fuji Restaurant Pty Ltd and the Port of Melbourne Authority. The respondent had filed an application to dismiss the applicant's proceedings for want of prosecution, citing delays in the case. The issue before the court was whether the respondent's application should be dismissed or if the applicant should be granted an opportunity to respond to the application. The court acknowledged the criticism of the delay but also recognised the need for the applicant to have a chance to address the respondent's application. The applicant's counsel, Mr Dixon, stated that there was a reasonable basis for believing that the delay could be explained. The court agreed to adjourn the hearing to allow the applicant to respond to the application.

The Federal Court ordered that the respondent's application for dismissal be adjourned to 23 May 1991. The court also directed that any affidavit in opposition to the application be filed and served by 16 May 1991. Additionally, the applicant was ordered to pay the costs of the hearing to be taxed. The court certified that the reasons for judgment were a true copy. The applicant was represented by Mr Dixon and solicitors Ken Beruldsen & Associates, while the respondent was represented by Mr A Archibald QC and Miss E Strong, with Mallesons Stephen Jaques as solicitors.

Fuji Restaurant Pty Ltd v Port of Melbourne Authority

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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

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.

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