Nexus Minerals Nl (ACN 009 148 529) v Brutus Constructions Pty Ltd (ACN 008 837 563)

[1996] FCA 1044

CATCHWORDS

APPEAL  -  extension of time within which notice of appeal may be filed.

Trade Practices Act 1974 s52

Corporations Law sub-s232(4)

Gallo v Dawson (1990) 93 ALR 479

NEXUS MINERALS NL (ACN 009 148 529) V BRUTUS CONSTRUCTIONS PTY LTD (ACN 008 837 563) AND BOLESLAW WILLIAM KOZYRSKI
WAG137 OF 1995

LEE J
PERTH
28 NOVEMBER 1996

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG137 OF 1995

B E T W E E N:           NEXUS MINERALS NL

(ACN 009 148 529)

Applicant

and

BRUTUS CONSTRUCTIONS PTY LTD

(ACN 008 837 563)

First Respondent

and

BOLESLAW WILLIAM KOZYRSKI

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:  LEE J

DATE OF ORDER:      28 NOVEMBER 1996

WHERE MADE:         PERTH

THE COURT ORDERS THAT:

The applicant have leave to file a notice of appeal until 6 December 1996.

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

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG137 OF 1995

B E T W E E N:           NEXUS MINERALS NL

(ACN 009 148 529)

Applicant

and

BRUTUS CONSTRUCTIONS PTY LTD

(ACN 008 837 563)

First Respondent

and

BOLESLAW WILLIAM KOZYRSKI

Second Respondent

CORAM:    LEE J
DATE :    28 NOVEMBER 1996
PLACE:    PERTH

REASONS FOR JUDGMENT

This is an application for extension of time to file and serve a notice of appeal.

In 1993 the applicant commenced proceedings in this Court against the first and second respondents in which the applicant claimed that it had suffered loss by reason of conduct by the first respondent in contravention of s52 of the Trade Practices Act 1974 in which the second respondent was involved and by reason of a breach of contract by the first respondent. The applicant also claimed that it suffered loss by reason of breaches of the duties imposed on the second respondent by sub-s232(4) of the Corporations Law as a director of the first respondent.

In due course the matter came on for trial before a Judge of this Court (Carr J) who, in reasons for judgment delivered on 1 September 1995, found that the pleadings of breach of contract and breach of director's duties had been proved.  However, his Honour also found that proof of damage was an essential element of each cause of action and as the applicant had failed to prove that it had suffered damage by reason of either of those breaches the application must be dismissed.  His Honour found there was no need to deal with the claim under the Trade Practices Act.  The matter of costs was deferred for further argument.

On 27 October 1995 his Honour heard submissions on the matter of costs.  At that time the orders made by his Honour on 1 September 1995 had not been extracted and the applicant sought variation of those orders by requesting his Honour to make a declaration that there had been a breach of contract by the first respondent and a breach of duty by the second respondent as a director of the first respondent.  His Honour refused to vary the orders he had made and ordered that the applicant pay the respondents' costs of the application and that the first respondent pay the applicant's costs of the cross-claim.

On 17 November 1995 the applicant sought to file a
notice of appeal in respect of the orders made on 1 September 1995 and 27 October 1995 and an application for extension of time to file the notice of appeal in respect of the orders made on 1 September 1995.  The application for extension of time was supported by an affidavit.  As at 17 November 1995 the notice of appeal was within time in respect of the orders made on 27 October 1995.

The Registry did not accept the notice of appeal and the application for leave to appeal was set down for hearing on 15 December 1995.

The respondents were served with copies of the notice of appeal, application for leave and supporting affidavit.  At the request of the respondents' solicitors the date of hearing of the application for leave was vacated and the application re-listed for hearing on 16 February 1996.  In late December 1995 the solicitors of the respondents filed notice that they had ceased to act for the respondents.  The respondents filed no address for service after the solicitor on the record ceased to act.

On 16 February 1996 the application came on for hearing before me at which time the applicant was represented by counsel, the first respondent did not appear and the second respondent appeared in person.

After hearing submissions I ordered that subject to an affidavit, accompanied by further written submissions in support of the application, being filed by the applicant by 23 February 1996 deposing to reasons for the delay in seeking to file a notice of appeal, and exhibiting a copy of a proposed notice of appeal, the application was to stand adjourned.  Any submissions in opposition to the application were to be filed by the respondents by 1 March 1996 and the matter was to be determined on the submissions filed.

The applicant filed and served an affidavit deposing to the reasons for delay but the affidavit did not exhibit a proposed notice of appeal.  In a subsequent affidavit the applicant has stated that the terms of the order were misunderstood by counsel.  Further submissions in support of the application were filed with the affidavit as directed.  No submissions were filed by the respondents.

Unfortunately, and partly because of problems in determining the address for service of the respondents, some time elapsed before a request was made that the matter be referred to a Judge.  In the end it was not until 31 October 1996 that the application was brought on for further hearing before me.  The applicant was represented by counsel.  A solicitor, not on the record, appeared by leave for the second respondent and undertook to inform the second respondent of the outcome of the proceeding and confirmed where service on
the second respondent may be effected.

I ordered that the applicant file and serve further submissions by 8 November 1996 and that by 15 November the respondents file and serve any submissions in reply and that upon receipt of the submissions the application would be determined on the papers.  Submissions were filed by the applicant and by the second respondent, in person, within the time prescribed.  No submissions were filed by the first respondent.

I have considered those submissions and am satisfied that leave should be granted to extend the time within which notice of appeal may be filed and served in this matter.

The applicant was within time in seeking to challenge the orders made in respect of costs of the proceeding and the delay in filing a notice of appeal in respect of the substantive orders made on 1 September 1995, in the circumstances, was not so gross as to require that leave to appeal be refused.

I accept that the respondents understood at the time the papers were filed upon them that an appeal was on foot in part and at all times they have been aware of the substance of the proposed appeal the applicant wished to institute.

The discretion provided in O 52 r 15 is directed to ensuring, primarily, that justice is done between the parties bearing in mind that a respondent to a proposed appeal has a vested right in the judgment as it stands.  (See:  Gallo v Dawson (1990) 93 ALR 479.) Pursuant to O 52 sub-r 15(2) special reasons are required to be shown before leave to file or serve a notice of appeal may be granted. The special reasons that make it appropriate in this case for leave to be granted are that the applicant has sought to exercise a right of appeal within time in respect of part of the matter, has explained the delay in making application for leave after the time for appeal expired and that the subsequent delay in prosecuting the application involved matters that were not wholly the fault of the applicant, notwithstanding that the institution of an appeal has now been delayed for what would be otherwise an inordinate period.

Furthermore, with regard to the orders made on 1 September 1995, the proposed appeal raises questions of substance, namely, whether damage is an integral part of either cause of action on which the applicant succeeded but for the proof of loss and whether, in any event, the applicant was entitled to declaratory orders, particularly in respect of a cause of action which involved an element of public interest, namely, the breach of duties imposed on the second respondent by the Corporations Law.

Accordingly, I will order that the time for filing and serving a notice of appeal on this matter be extended to 6 December 1996.

I certify that this and the preceding six pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
              Date:

BY WRITTEN SUBMISSIONS FILED 23 FEBRUARY 1996, 8 AND 15 NOVEMBER 1996

Solicitors for the Applicant:  Wilson & Rogers

First Respondent:  No appearance.

Second Respondent:  In person.

Date of Judgment : 28 November 1996