Malouf, Warwick George Strauss v Malouf, John George Strauss

[1998] FCA 1641

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1259  of   1998

BETWEEN:

WARWICK GEORGE STRAUSS MALOUF
APPLICANT

AND:

JOHN GEORGE STRAUSS MALOUF
FIRST RESPONDENT

PAMELA MARY STRAUSS MALOUF
SECOND RESPONDENT

OSMAL (HOLDINGS) PTY LTD (ACN 000 145 166)
THIRD RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

18 DECEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The extention of time for lodging a notice of appeal from his Honour's decision until 4.15 on Wednesday, 23 December 1998 is granted.

1. The Applicant pay the Respondents costs of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1259 of 1998

BETWEEN:

WARWICK GEORGE STRAUSS MALOUF
APPLICANT

AND:

JOHN GEORGE STRAUSS MALOUF
FIRST RESPONDENT

PAMELA MARY STRAUSS MALOUF
SECOND RESPONDENT

OSMAL (HOLDINGS) PTY LTD (ACN 000 145 166)
THIRD RESPONDENT

JUDGE:	HELY J
DATE:	18 DECEMBER 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

HELY J:   On 2 October 1998 Einfeld J delivered an extempore judgment giving his reasons for judgment in dismissing an application by the present applicant for preliminary discovery under Order 15(A) Rule 6.  Thereafter, the applicant made a number of inquiries as to the availability of the transcript of his Honour's reasons for decision.  By 19 November 1998 those reasons had still not become available.  The time for lodging an appeal from his Honour's decision expired on 23 October 1998.  On 19 November 1998 an application was lodged for an extension of time in which to lodge a notice of appeal.

The substantial ground for the application was the absence of a transcript of his Honour's reasons for decision, and a desire on the part of the applicant not to commit himself to an appeal until he had had an opportunity of studying the written judgment.  On 4 December 1998 of his Honour's reasons for judgment became available.  The question which I have to determine is whether an extension of time should be given.

I appreciate the force of many of the submissions put by Ms Deamer, that it must have been apparent to the applicant on 2 October 1998 that his Honour was delivering judgment and that the time for appealing from that judgment had commenced to run.

I think that it was reasonable for the applicant to defer a decision whether to appeal from his Honour's decision until he had had an opportunity of studying the transcript of the reasons for the decision.  I have read his Honour's reasons for decision, and the applicant may encounter considerable difficulty in mounting a successful appeal therefrom.  However, there has been filed evidence on behalf of the applicant that he has received advice from senior counsel that grounds of appeal which are specified are open to the applicant.  On the basis of that evidence I think that I would be justified in concluding that an appeal from his Honour's decision is not frivolous.  On that basis it cannot be said that it is one which has no prospects of success.

The respondent in the belief that no appeal was to be lodged from his Honour's decision has had a bill of costs of the proceedings at first instance prepared and has no doubt incurred expenditure in connection with the preparation of that bill.  Nonetheless I do not think that this is a sufficient prejudice to outweigh the factors which point in the opposite direction in favour of the granting of an extension of time.  I therefore propose to accede to the application and to make an order extending the time for lodging a notice of appeal from his Honour's decision until 4.15 on Wednesday, 23 December.

I raised with Mr Malouf originally, and with Mr Vrisakis more recently, whether leave to appeal is needed in order to mount an appeal from his Honour's decision.  Mr Vrisakis tells me that he takes the view that it is not, his application is simply for an extension of time within which to lodge a notice of appeal.  If it should turn out that an appeal instituted in that way is incompetent then so be it.  The order which I make is that I extend the time for lodging an appeal from his Honour's decision until 4.15 on Wednesday next.

The applicant should pay the respondent's costs of this application. 

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:            18 December 1998

Solicitor for the Applicant:	A Vrisakis
Solicitor for the Respondent:	J Deamer Phillips Fox
Date of Hearing:	18 December 1998
Date of Judgment:	18 December 1998