Naiama Pastoral Co P/L v Elders Finance & Investment Co Ltd

[1994] FCA 1036

JUDGMENT No. ......,- ....... J ,..4. l 0 3 6 9

IN THE FEDERAL COURT OF AUSTRALIA	)
)

SOUTH AUSTRALIA DISTRICT REGISTRY ) NO. SG 22 of 1994

)

GENERAL DIVISION

)

BETWEEN:

NAIAMA PASTORAL CO PTY LTD

Applicant

RECEIVED - and -

2 9 DEC 1994

ELDERS FINANCE AND

;U)ERAL COURT OF

AUSTRALIA INVESTMENT CO LIMITED

Respondent

EX TEMPORE REASONS FOR JUDGMENT

CORAM : Branson J.

PLACE : Adelalde

DATE: 19 December 1994

This matter comes before the court pursuant to a notice of motion dated 14 December 1994. By motion the applicant in the principle proceedings, Naiama Pastoral CO Pty Limited, seeks leave to appeal the declslon of von Doussa J made on 14 October 1994. The judgment of von Doussa J is plainly an lnterlocutory judgment of

the court. It resulted in no final determination of the rights of the parties. It gave the applicant in the proceedings leave to re-plead their statement of clalm.

As the judgment was an lnterlocutory ludgment it was incumbent upon the applicant to seek leave to appeal, either at the time

the judgment was pronounced or by a notice filed and served

within seven days from the pronouncement of the interlocutory

judgment from which leave to appeal is sought, or within such

further time as the court or a judge may allow. No formal

application for any extension of time has been made to thls

court. I am, however, prepared to regard Mr Scragg's argument

today as involving an oral application for an extension of time

.

within which to seek leave to appeal from von Doussa J's

The notice of motion in this matter was taken out two months after the date of the ludgment of von Doussa J and nearly three weeks after the respondent filed a notice of motion seeking an order that the proceedings be stayed or dismissed pursuant to Order 11 rule 23 of the Federal Court Rules. It seems to me that no proper explanation has been given for a delay of this magnitude. Notwithstanding that, I have considered whether or not this would be an appropriate matter in which to grant leave to appeal, even if the matter of timeliness were set aside.

The factors whlch the court takes into account on such an application are, first, whether in all the circumstances the decision is attended by sufflclent doubt to warrant it belng re- considered by the Full Court, and second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Von Doussa J struck out the Statement of Claim of the applicant on the basis that it did not dlsclose any cause of action by the applicant agalnst the respondent. His Honour granted leave to the applicant to file a further Amended

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Statement of Claim pleading a cause of action based on suggested facts advanced by his counsel in oral argument. I am now informed that the applicant does not wish to flle such an amended statement of clalm: he wlshes to be able to rely on the Amended Statement of Claim struck out by von Doussa J. If it is to be supposed that the decision of von Doussa J is wrong, I am satisfied that substantial injustice would result if leave in this case were refused.

However, I am not in any way satisfied that the decision of von Doussa J is attended by sufficient doubt to warrant the re- consideration of this matter by the Full Court.

I accept the argument of Dr Baxter, who appeared with Mr Warde for the respondent, that the case put forward by Mr Scragg, counsel for the applicant, as demonstrating posslble error in the reasoning of von Doussa J, is not the case actually pleaded by the applicants. It appears that it is a new cause of action which might well be able to be pursued in fresh proceedings. I therefore refuse the applicant an extension of time within whlch to seek leave to appeal. Further, I indicate that had I granted an extension of time I would, nonetheless, have dismissed the application for leave to appeal.

On this basis I understand that it is agreed between the parties that an order should be made on the Notice of Motion dated 24 November 1994 filed on behalf of the respondent, that the proceedings herein be dismissed. I so order.

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The respondent will have its costs of both notices of motion from the applicant. I use the descriptions of the parties in the action.

I certify that this and the

3 preceding pages are a

true copy of the Ex Tempore Reasons for Judgment of Justice Branso*

Counsel for the Applicant	Mr P Scragg
Solicitors for the Applicant	Peter Scragg
Counsel for the Respondent	Dr R Baxter with him Mr J Warde
Solicitors for the Respondent	Johnson Wlnter &
Slattery
Hearing Date	19 December 1994