Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd

[2002] FCA 550

FEDERAL COURT OF AUSTRALIA

Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd [2002] FCA 550

PRACTICE and PROCEDURE – application for an extension of time within which to appeal against an order for security of costs – appeal from interlocutory orders – order for security of costs against a representative party

Federal Court of Australia Act 1976 (Cth) Part IVA, ss 56, 431A

Woodhouse v McPhee (1997) 80 FCR 529 cited
Ryan v Great Lakes Council (1998) 154 ALR 584 cited
Ryan v Great Lakes Council (1998) 155 ALR 447 referred to
Tobacco Control Coalition Inc v Phillip Morris (Australia) Ltd [2000] FCA 1004 referred to
Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd [2001] FCA 582 referred to
House v The King (1936) 55 CLR 499 cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1980) 31 ALR 232 cited

NENDY ENTERPRISES PTY LIMITED v NEW HOLLAND AUSTRALIA PTY LIMITED
N1149 OF 2001

TAMBERLIN J
SYDNEY
10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1149 OF 2001

BETWEEN:	NENDY ENTERPRISES PTY LIMITED APPLICANT
AND:	NEW HOLLAND AUSTRALIA PTY LIMITED RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.The applicant pay the respondent’s costs.

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	N1149 OF 2002

BETWEEN:	NENDY ENTERPRISES PTY LIMITED APPLICANT
AND:	NEW HOLLAND AUSTRALIA PTY LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application filed on 19 February 2002 by the applicant, Nendy Enterprises Pty Limited (“Nendy”), seeking an extension of time to appeal from two interlocutory orders of Whitlam J given on 6 November 2001 and 19 December 2001, requiring Nendy to provide security for costs in an amount of $50,000.  The application also seeks leave to appeal from the orders to provide security.

2. The proceedings are in the form of a representative action filed pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the FCA”) in which Nendy has been selected as the representative party.

3. There was no application for leave to appeal lodged against the primary decision of Whitlam J to order security for costs which was made on 6 November 2001 until the present application of 19 February 2002 almost three months after his Honour’s judgment.  The time limit for an application for leave to appeal from an interlocutory judgment is seven days from the date of the order: see O 52 r 10(2) of the Federal Court Rules (“the FCR”).  The application dismissed by Whitlam J on 19 December sought to revisit the earlier application.

4. Nor was any application made to seek leave to appeal from this latter decision until the present application. Under s 56 of the FCA, the Court has…