Heng v (Australia) Pty Ltd v Qi Wang
[2008] FCA 1146
•30 June 2008
FEDERAL COURT OF AUSTRALIA
Heng V (Australia) Pty Ltd v Qi Wang [2008] FCA 1146
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Federal Court Rules O 52 r 5(2)HENG V (AUSTRALIA) PTY LTD ACN 101 665 785 and TIANFU LI v QI WANG
VID 304 OF 2008
GRAY J
30 JUNE 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 304 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
HENG V (AUSTRALIA) PTY LTD ACN 101 665 785
First ApplicantTIANFU LI
Second ApplicantAND:
QI WANG
Respondent
JUDGE:
GRAY J
DATE OF ORDER:
30 JUNE 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The time for applying for leave to appeal from the judgments of the Federal Magistrates Court, given on 1 April and 14 April 2008, be extended to 8 May 2008 and 26 June 2008 respectively.
2.Leave to appeal from the judgments of the Federal Magistrates Court of 1 April 2008 and 14 April 2008 be granted.
3.On or before 7 July 2008, the appellants file and serve a notice of appeal relating to the judgment of 1 April 2008.
4.The draft notice of appeal, filed on 26 June 2008, stand as the appellants’ notice of appeal relating to the judgment of 14 April 2008.
5.The parties attend before a registrar on a date to be fixed by the registrar for the purpose of settling the index to the appeal book.
6.The registrar fix dates for the filing of:
(a) the appeal book; and
(b) written outlines of submissions on the appeals.
7.The appeals be listed for hearing on a date to be fixed, after the filing of outlines of submissions.
8. The appellants pay the respondent’s costs of the applications for enlargements of time and leave to appeal, and of today.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 304 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
HENG V (AUSTRALIA) PTY LTD ACN 101 665 785
First ApplicantTIANFU LI
Second ApplicantAND:
QI WANG
Respondent
JUDGE:
GRAY J
DATE:
30 JUNE 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court are applications for leave to appeal from two judgments of the Federal Magistrates Court, given on 1 April and 14 April 2008 respectively. In each case, there is also an application to enlarge the time fixed by O 52 r 5(2) of the Federal Court Rules for the making of an application for leave to appeal from a judgment of a court other than this Court.
On 6 May 2008 the applicants (who are referred to in these reasons for judgment as “the appellants”, for the sake of convenience) filed a notice of appeal which stated that they wished to appeal from the orders given on 1 April, 14 April and 15 April 2008. There seems to be little doubt that the judgment given on 15 April 2008 was a final judgment of the Federal Magistrates Court, from which the appellants had a right of appeal to this Court. It is also clear that the exercise of that right was within the period of 21 days, allowed for an appeal.
The problem was that the judgments of 1 April and 14 April were manifestly interlocutory judgments. The substance of the earlier one was to make orders that the appellants comply with certain previous orders in relation to discovery and inspection of documents by a particular date. On 14 April, the Federal Magistrate found that those orders had not been complied with and consequently struck out the defence of the appellants. Accordingly, the matter proceeded on 15 April, effectively as an undefended case, with the Federal Magistrate giving judgment only on the evidence provided in affidavits filed on behalf of the (now) respondent.
The time by which enlargement is necessary is not great. It is a matter of only a few weeks in each case. A significant factor is that early notice was given to the respondent that the appellants wished to appeal from all three judgments. Counsel for the respondent has suggested that there is no adequate explanation for the delay. At least in part the delay is explained by the fact that the appellants did not have legal representation for some time. They now have it.
In my view, the final judgment of 15 April is so bound up with the earlier judgments that to attempt to determine it on its own would be extremely difficult. As I have said, there is a right of appeal from that judgment. In order to make that right of appeal effective, it seems to me that I should grant the necessary enlargements of time and the necessary leave to appeal. That will enable the whole of the matter to be before the Court.
I propose to make orders to that effect and also to order the parties to attend before a registrar for the purpose of settling the index to the appeal book. The registrar will fix dates for the filing of the appeal book and written outlines of submissions on the appeal, which can then be listed for hearing. Two matters remain to be determined. One is the composition of the Court on appeal and the other is the question of the costs of these applications for enlargement of time and leave to appeal.
As to the first, s 25(1A) of the Federal Court of Australia Act 1976 (Cth) requires that a determination be made by the Chief Justice as to whether the appeals be heard by a Full Court or a single judge. As it happens, I am currently the Acting Chief Justice, so I am able to make that determination here and now, rather than to send a memorandum to myself about it. It does seem to me that a single judge is the appropriate composition of the Court. There does not seem to be any major issue of principle involved.
As to the second matter, it seems to me appropriate that the appellants, who are seeking the indulgence of the Court to enlarge the time for applications for leave to appeal, ought to pay the costs of today, even though those costs include the applications for leave to appeal and any necessary directions on the appeal. It would be too difficult to separate out the costs of those other matters from the need for an enlargement of time. Accordingly, the order will be that the appellants pay the respondent’s costs of the applications for enlargements of time for leave to appeal and of today.
The orders I make are as follows:
1.The time for applying for leave to appeal from the judgments of the Federal Magistrates Court, given on 1 April and 14 April 2008, be extended to 8 May 2008 and 26 June 2008 respectively.
2.Leave to appeal from the judgments of the Federal Magistrates Court, of 1 April 2008 and 14 April 2008, be granted.
3.On or before 7 July 2008, the appellants file and serve a notice of appeal relating to the judgment of 1 April 2008.
4.The draft notice of appeal, filed on 26 June 2008, stand as the appellants’ notice of appeal, relating to the judgment of 14 April 2008.
5.The parties attend before a registrar on a date to be fixed by the registrar for the purpose of settling the index to the appeal book.
6.The registrar fix dates for the filing of:
(a) the appeal book; and
(b) written outlines of submissions on the appeals.
7.The appeals be listed for hearing on a date to be fixed, after the filing of outlines of submissions.
8.The appellants pay the respondent’s costs of the applications for enlargements of time and leave to appeal, and of today.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Gray. Associate:
Dated: 5 August 2008
Counsel for the Applicants: R Cook Solicitor for the Applicants: Galilee Solicitors Counsel for the Respondent: F Lim Solicitor for the Respondent: Francis Lim Barristers & Solicitors
Date of Hearing: 30 June 2008 Date of Judgment: 30 June 2008
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