Intellec Development Group Pty Ltd v 3D Funtimes Ltd

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FEDERAL COURT OF AUSTRALIA

Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCAFC 148

Citation: Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCAFC 148
Appeal from: 3D Funtimes Limited v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407
Parties: INTELLEC DEVELOPMENT GROUP PTY LTD (ACN 102 696 695) v 3D FUNTIMES LTD (ACN 118 965 932)
File number: WAD 156 of 2011
Judges: STONE, COLLIER AND GILMOUR JJ
Date of judgment: 22 November 2011
Catchwords: PRACTICE AND PROCEDURE – summary dismissal of appeal under s 25(2B)(ba) – appellant’s failure to prosecute appeal – delay in prosecuting appeal causing serious prejudice to respondent – just determination of proceeding compromised by appellant’s delay – likelihood of appeal succeeding not sufficient to warrant exposing respondent to the prejudice of further delay
Legislation: Federal Court  of Australia Act 1976 (Cth) ss 25(2B)(ba) and (bb), 37M
Federal Court Rules r 36.74 –
Federal Court Rules (former) O 52 r 38
Cases cited:

3D Funtimes Limited v Intellec Development Group Pty Ltd [2011] FCA 45

Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCA 797

Shirreff v Beck Legal Pty Limited (No. 3) (2011) FCA 604
Van Reesema v Giameos (1979) 27 ALR 525
Date of hearing: 22 November 2011
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 18
Counsel for the Appellant: A Goldfinch
Solicitor for the Appellant: Stables Scott
Counsel for the Respondent: D Thompson
Solicitor for the Respondent: David Thompson

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 156 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

INTELLEC DEVELOPMENT GROUP PTY LTD (ACN 102 696 695)
Appellant
AND:

3D FUNTIMES LTD (ACN 118 965 932)
Respondent

JUDGES:

STONE, COLLIER AND GILMOUR JJ

DATE OF ORDER:

22 NOVEMBER 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application filed by the respondent on 17 November 2011 be allowed.

2.        The appeal be dismissed.

3.The appellant bear the respondent’s costs of the application filed on 17 November 2011 and of the appeal.

4.The respondent is discharged from its undertakings given in respect of this proceeding.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 156 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

INTELLEC DEVELOPMENT GROUP PTY LTD (ACN 102 696 695)
Appellant
AND:

3D FUNTIMES LTD (ACN 118 965 932)
Respondent

JUDGES:

STONE, COLLIER AND GILMOUR JJ

DATE:

22 NOVEMBER 2011

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The Full Court has before it an application for summary dismissal of the appeal in this proceeding which has been scheduled for hearing today.  That application was filed by the respondent, 3D Funtimes Limited (3D Funtimes) on 17 November 2011 and purports to rely on r 36.74 of the Federal Court Rules as the source of the Court’s power. In fact, r 36.74 merely permits a…

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Details
Case
[2011] FCAFC 148
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Intellec Development Group Pty Ltd appealed against a decision made by 3D Funtimes Ltd. The central dispute involved the interpretation and application of contractual obligations between the parties, with 3D Funtimes asserting that Intellec had breached the terms of their agreement.

The primary legal issue before the court was whether the appeal should be summarily dismissed due to the appellant's failure to prosecute the appeal, which resulted in significant delays. The court had to determine whether the appellant's delay had caused serious prejudice to the respondent, thereby compromising the just determination of the proceeding. Additionally, the court assessed whether the likelihood of the appeal succeeding was sufficient to warrant exposing the respondent to further delay.

The court held that the appellant's failure to prosecute the appeal had indeed caused serious prejudice to the respondent. The delay had compromised the just determination of the proceeding, and the likelihood of the appeal succeeding was not a sufficient factor to warrant further delay. Consequently, the court allowed the respondent's application for summary dismissal of the appeal and dismissed the appeal. Furthermore, the appellant was ordered to bear the respondent's costs associated with the application and the appeal, and the respondent was discharged from its undertakings given in respect of the proceeding.

Orders

Orders of the court

1. The application filed by the respondent on 17 November 2011 be allowed.

2. The appeal be dismissed.

3. The appellant bear the respondent’s costs of the application filed on 17 November 2011 and of the appeal.

4. The respondent is discharged from its undertakings given in respect of this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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