Ginos Engineers Pty Ltd v Autodesk Inc

[2009] FCA 183

FEDERAL COURT OF AUSTRALIA

Ginos Engineers Pty Ltd v Autodesk Inc [2009] FCA 183

GINOS ENGINEERS PTY LTD and ZISIS GINOS v AUTODESK INC, AUTODESK ASIA PTE LTD and AUTODESK AUSTRALIA PTY LTD

NSD 112 of 2009

EDMONDS J
25 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 112 of 2009

BETWEEN:

GINOS ENGINEERS PTY LTD
First Applicant

ZISIS GINOS
Second Applicant

AND:

AUTODESK INC
First Respondent

AUTODESK ASIA PTE LTD
Second Respondent

AUTODESK AUSTRALIA PTY LTD
Third Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	25 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve notice of appeal be refused.

2.The applicants pay the respondents’ costs of the application as taxed or agreed.

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 112 of 2009

BETWEEN:

GINOS ENGINEERS PTY LTD
First Applicant

ZISIS GINOS
Second Applicant

AND:

AUTODESK INC
First Respondent

AUTODESK ASIA PTE LTD
Second Respondent

AUTODESK AUSTRALIA PTY LTD
Third Respondent

JUDGE:	EDMONDS J
DATE:	25 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The only evidence before me as to there being special reasons as to why an extension of time for the filing of the notice of appeal should be granted was a statement which appeared in the affidavit of Mr Peter Scragg sworn 10 February 2009 in the following terms:

   The reason for the delay in filing and serving the notice of appeal is that there had been a misunderstanding between the applicants and my firm with respect to the retainer and provision of disbursement funds to lodge the proposed notice of appeal.

2. This was clarified, by a statement from the bar table, to the extent that its lack of clarity was to be understood as being a depiction of a situation where no action was to be taken until the solicitor’s fees had been paid.  Clearly that is not evidence before the Court.  No other circumstances were advanced as to why there were special reasons for extending the time in which to file a notice of appeal.  It is true that the delay in the present case is minimal and that would be a factor, and indeed is a factor, which I have taken into account in coming to the decision I have.  However, there is a further factor which impinges on my deliberation of this issue and that is, the prospect of the applicants’ success on appeal having regard to the terms of the proposed notice of appeal as it is presently drafted.

3. That draft notice of appeal sets out what are said to be six grounds of appeal.  In a number of respects, each of the grounds is noteworthy for what they do not say rather than what they say.  Having heard counsel from both sides, I have not immediately, but on reflection, come to the view that on the basis of the grounds of appeal, the applicants have no prospects of success.  That being so, and notwithstanding the minimal delay, I have come to the conclusion, in the face of the fact that there is no evidence of special reasons existing which explain the delay, that the application for an extension of time should be refused.

4. The applicants will pay the respondents’ costs of the application as taxed or agreed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:       2 March 2009

Solicitor for the First and Second Applicants:	Peter Scragg and Associates
Counsel for the First, Second and Third Respondents:	Mr J Hennessy
Solicitor for the First, Second and Third Respondents:	Gilbert + Tobin

Date of Hearing:	25 February 2009
Date of Judgment:	25 February 2009