Keen Mar Corp. Pty Ltd v Labrador Park Shopping Centre Pty Ltd

[1988] FCA 216

IN THE FEDERAL COURT OF AUSTRALIA)

)

QUEENSLAND DISTRICT REGISTRY	)	QLD NO. 119 Of 1984
1
GENERAL DIVISION	)

BETWEEN:

KEEN MAR CORPORATION PTY LTD,

ALAN KEEN and TRUDY KEEN

Applicants

AND :	-
LABRADOR PARK SHOPPING  CENTRE
PTY LTD

First Respondent

AND :	-
HERSFIELD DEVELOPMENTS PTY LTD

Second Respondent

MINUTE OF ORDER

JUDGE :	FOX J.
DATE :	6 May 1988

-E MADE: Brisbane

THE COURT ORDERS THAT:

1. Leave be given to the applicants to file and serve a

notice of appeal by 4 pm Monday 9 May 1988.

Order 36 of the Federal Court Rules.

2.    The costs of the respondents to this application be the respondents' costs in the proposed appeal, and if the present applicants do not file an appeal, the costs will be the respondents' costs.

Note: Settlement and entry of orders is dealt with in

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA)

)

QUEENSLAND DISTRICT REGISTRY	)	QLD No. 119 of 1984
)
GENERAL DIVISION	)

BETWEEN:

KEEN MAR CORPORATION PTY LTD,

ALAN KEEN and TRUDY KEEN

Applicants

-	AND :
LABRADOR PARK SHOPPING CENTRE PTY LTD

First Respondent

-	AND :
HERSFIELD DEVELOPMENTS PTY LTD

Second Respondent

CORAM:  FOX 3.

DATE: 6 MAY 1988

REASONS FOR JUDGMENT

EX TEMPORE

FOX J.

This is an application that was dated 13 April 1988 and

was apparently filed on that day for extension of time to file

and serve a notice of appeal. It is made. in reliance upon Order

52 rule 15(2) of the rules of court.

The applicants were one of three sets of applicants
whose cases were heard together. They had common issues of law

and fact and were dealt with by his Honour in a single judgment.

The respondents, Labrador Park Shopping Centre Pty Ltd and

L.

Hersfield Developments Pty Ltd, were the same in each case.
There were in each of the cases cross-claims by the respondent,
Labrador Park Shopping Centre Pty Ltd, against the respective

applicants.

Within the time limited. for appeal, but arguably on the

last day limited for filing a notice of appeal all the other

parties have appealed. The respondents to the present

application, who were the respondents to the	pr sent applicants'
application in the original proceedings, filed	a notice of appeal
on 31 March 1988.

For that purpose, they filed the one document. The

other applicants at or about the same time	also filed notices of
appeal against the dismissal of their	application, by his Honour.
So there are, in effect, pending before the	appellate court
appeals and cross-appeals involving the	original respondents and
two of the three original applicants.

I say the other two applicants, but in fact the appeal

lodged by the respondents in the first application names among

the respondents to that appeal the present applicants.
The reason that no notice of appeal was filed by the present applicants within the time limited	was that they were in

effect waiting to see what action took place on the part of the

respondents. In the events as I have indicated, all the other parties appealed or cross-appealed whichever way one looks at the matter, at the same time, being virtually, if not precisely on

the last day limited for appeal. So much is this so that in fact

the original applicants who were unsuccessful have named

themselves appellants and have been named	as respondents by the
original respondents, and in their	applications or their notices
of appeal have named the original respondents	a respondents to

the appeal. The documents do not reflect appeals and

cross-appeals although that is the effect of them. At some

stage, something will have to be worked out as to how they should

be regarded for the purpose	of their conduct before the Full
Court.

FKOm all this activity, as I have indicated, the present

applicants have been apart. This was due to the voluntary

decision to wait and see how things developed, particularly

insofar as the original respondents were concerned.

Their case in this regard is, of course, essentially

that when they received the notice of	appeal from the original
respondents they did not have time to	file notices of appeal (or
cross-appeal) within time.

The matter before me is one as to the proper exercise of

my discretion.

Counsel for the respondents to this application has

pressed upon me in argument that where the word "reasons" appears

in Order 52 rule 15(2), that requires that there be more than one

reason, and he has cited some authority dealing admittedly with a different subject matter which he submits would support that result.

For myself, I do not find that argument at all

convincing. As a matter purely of logic, of course, it is always possible to generalise from specific reasons to a more general reason, but, in any event, I would not be disposed any more than were the judges who decided JeSS v. Scott (1986) 70 ALR 185, to

confine the word "reasons" to multiple separate reasons.

It is then put on behalf of the respondents that the

only matter that is put as a reason by the applicants is the
voluntary decision to wait and see to which I have already

referred. It is put on behalf of the applicants that that is a perfectly permissible course of action and is not indicative of negligence or any of the other types of activities which have

been referred to in some of the	cases cited by the respondents in
this case.

I think on an earlier occasion when this matter first

came before me, I made an observation, the short effect of which

was that when the course is being followed, of waiting for the

last minute, one has to be prepared to cope with a situation of
the respondent filing process	at that time, so that an intending

appellant can file its notice of appeal.

It is doubtless an understandable commercial attitude and an understandable non-commercial attitude, for that matter, for a party who has been left in a position of not having succeeded on its claim and not having lost on a counter-claim

made against him to say, colloquially speaking, well, we have had

enough and we will do nothing until someone else stirs things up.

I think that can be regarded, if not a reason, at least as a

background which tends to	support rather than otherwise, the case
that is made.

Put another way, there is an explanation of the delay which is credible . and understandable, although as I have indicated, the course is a dangerous one.

The matter that weighs more heavily with me, although not stated in the affidavit as a ground of decision, but is quite apparent from the course of events as I have mentioned them, is that the present applicants are being brought into the appellate

arena by the	respondents to the	present application, the original
respondents. The present applicants	are a	party to those

proceedings and doubtless all cases will be heard together.

It would seem to me an unfair and unreasonable result
that they should not in that situation be able to pursue again

the claim they sort to pursue before the trial judge. Their

co-applicants will be pressing their claims which, as I
understand, involve common ingredients, to the	point at which all
proceedings were originally heard together.

There is a feature which has not been mentioned by

counsel on either side and that is that at some stage of the

proceedings before his Honour, but after they had progressed to a

point where some matter as between the present applicants and the

respondents had been raised under s.52 of the Trade Practi.ces Act 1974, that claim was abandoned, so that all that was left then was the common law claim upon which the present applicants, one of the original sets of applicants, relied.

His Honour, nevertheless, proceeded to d,eal with the matter without any query being raised as to the continuing

jurisdiction of the court to deal with it. I do not suggest that

the court did not and does not have jurisdiction but I mention the matter because what is to be pursued in the appeal which it is now sought leave to commence is a common law claim only. If there is any problem arising out of all this doubtless it can be dealt with by the appellate court and it is certainly a more appropriate place for it to be dealt with than by myself on this application.

The application for leave to appeal out of time was made

arguably within 14 days. It may have been within 10 days of the

time limited for filing a notice of appeal. Nothing much	has
been made on either side	about that circumstance. If, of course,

the application for extension of time had been made within the

time limited for filing a notice of appeal, that would have

raised different considerations under Order 52 rule 15(1), but, in any event the present application was filed soon after the time had expired.

I am therefore of the view that the application should

be granted and that the applicants should have leave to appeal,

although out of time. That is, in the words of the rule, leave

to file and serve a notice of appeal. With the application and

supporting documents that have been filed there has been filed a

notice of appeal. I have not studied it. Nothing has been said about it, except that it deals only with the common law matter. Whether it is a correct notice of appeal or has any defect is a

matter that, of course, should be looked	at carefully by counsel
before it is actually filed.

The notice of appeal should, however, be filed and

served by 4 p.m. Monday 9 May 1988.

The costs of the respondents to this application should

be the respondents' costs in the proposed appeal and if the
present applicants do not file an appeal, then they should be

simply the respondents' costs.

I certify that this and the

six ( 6 ) preceding pages are a true copy of the Reasons for Judgment herein of his Honour

Mr. Justice Fox.

Associate: c qiLbJe.4 M-J-

Date: 6 May 1988

Counsel for the Applicants:  Mr ,A. J Macklin

Solicitors for the Applicants:	Hempenstall O'Donoghue & Co.
Counsel for the Respondents:	Mr P. Kronberg
Solicitors for the Respondents:	Flower & Hart
Date of hearing:	Brisbane: 6 May 1988
Date judgment delivered:	Brisbane: 6 May 1988