PM Developments Pty Ltd v Omiros Pty Ltd

[2005] FCA 1090

FEDERAL COURT OF AUSTRALIA

PM Developments Pty Ltd v Omiros Pty Ltd [2005] FCA 1090

Federal Magistrates Court Rules 2001 r 8.01

Omiros Pty Ltd v PM Developments Pty Ltd & Ors (No. 2) [2005] FMCA 234 referred to

PM DEVELOPMENTS PTY LTD (ACN 099 606 827) v OMIROS PTY LTD
(ACN 007 125 466)
Q 82 of 2005

GRAY J
23 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 82 of 2005

BETWEEN:	PM DEVELOPMENTS PTY LTD ACN 099 606 827 APPLICANT
AND:	OMIROS PTY LTD ACN 007 125 466 RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	23 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The motion, the subject of the notice of motion filed on 22 March 2005, be dismissed.

2.The applicant pay the respondent’s costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 82 of 2005

BETWEEN:	PM DEVELOPMENTS PTY LTD ACN 099 606 827 APPLICANT
AND:	OMIROS PTY LTD ACN 007 125 466 RESPONDENT

JUDGE:	GRAY J
DATE:	23 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By notice of motion, filed on 22 March 2005, the applicant seeks an enlargement of time in which to apply for leave to appeal from a judgment of the Federal Magistrates Court, and leave to appeal from that judgment.  The judgment of the Federal Magistrates Court was given on 7 March 2005.  See Omiros Pty Ltd v PM Developments Pty Ltd & Ors (No. 2) [2005] FMCA 234. The learned federal magistrate dismissed an application by the present applicant to change the venue of the proceeding in that court.

2. Rule 8.01 of the Federal Magistrates Court Rules 2001 provides for applications for change of venue to another registry of that court and sets out the matters to which the court must have regard in the hearing of such an application.

3. It seems to me that the present applicant has tended to confuse the issue of venue, that is to say, the registry in which a case is managed, with the issue of the conduct of a trial.  Like this Court, the Federal Magistrates Court is a national court and can sit in any part of Australia to deal with all or part of a trial.  Once the issues in the proceeding are clear, and it is known what witnesses will be called, it will be possible for the present applicant to seek a direction as to the place of the trial, and to seek directions as to the manner in which the trial is to be conducted. 

4. The order of the Federal Magistrates Court is an interlocutory judgment.  No estoppel arises from it.  It can be revisited, either as a result of a change of circumstances or, as I have suggested, in the way of seeking directions as to the conduct of the trial, as distinct from attempting to change the venue of the entire proceeding.  For this reason there would be no utility in dealing with the appeal and the application for enlargement of time.  The application for leave to appeal can be dismissed on that basis.

5. Alternatively, there is some authority suggesting that one of the matters that an applicant for an enlargement of time must establish is a satisfactory explanation for the delay in instituting the proceeding.  All that is said in the present case, in a single line of an affidavit, is that the representative of the respondent (a director of the respondent) has been suffering ill health and his solicitor was unable to contact him.  There is no explanation as to the nature of the ill health, or the reason for the lack of ability to contact the director, no explanation as to whether there is any other director or other representative of the respondent who might have given instructions, and accordingly no satisfactory explanation of the delay.

6. On both these grounds I should dismiss the motion.  The orders of the Court will be:

   1.The motion, the subject of the notice of motion filed on 22 March 2005, be dismissed.

   2.The applicant pay the respondent’s costs of the motion.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:            10 August 2005

Counsel for the applicant:	R Clark
Solicitor for the applicant:	Provestlaw
Counsel for the respondent:	A Duggan
Solicitor for the respondent:	Vadarlis & Associates
Date of Hearing:	23 May 2005
Date of Judgment:	23 May 2005