Salfinger v Niugini Mining (Australia) Pty Ltd - [2008] FCAFC 102

FEDERAL COURT OF AUSTRALIA
Salfinger v Niugini Mining (Australia) Pty Ltd [2008] FCAFC 102
PRACTICE AND PROCEDURE – appeal – application for adjournment – insufficient grounds – application refused
Poulton v Commonwealth (1953) 89 CLR 540
Orr v Holmes (1948) 76 CLR 632
Wollongong Corporation v Cowan (1955) 93 CLR 435
RODERICK NEIL SALFINGER v NIUGINI MINING (AUSTRALIA) PTY LTD (ACN 011 060 898) and STATE OF QUEENSLAND
VID 979 of 2007
FINKELSTEIN, JACOBSON AND GORDON JJ
5 MAY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 979 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RODERICK NEIL SALFINGER
Appellant

AND:

NIUGINI MINING (AUSTRALIA) PTY LTD
(ACN 011 060 898)
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGES:

FINKELSTEIN, JACOBSON AND GORDON JJ

DATE OF ORDER:

5 MAY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for an adjournment be dismissed.
2.The appellant pay the respondents’ costs of the application.
3.The second respondent’s application to dismiss the appeal for want of prosecution be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 979 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RODERICK NEIL SALFINGER
Appellant

AND:

NIUGINI MINING (AUSTRALIA) PTY LTD
(ACN 011 060 898)
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGES:

FINKELSTEIN, JACOBSON AND GORDON JJ

DATE:

5 MAY 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
FINKELSTEIN J

Mr Salfinger’s appeal from the orders of Heerey J is listed to be heard today. Not for the first time, Mr Salfinger is applying for the hearing date to be vacated and the appeal to be adjourned. For their part the respondents resist the application, and the second respondent seeks an order that the appeal be dismissed for want of prosecution.
It is necessary to say a word or two about the background to put both applications into context. The dispute has its origins in an agreement entitled “Asset Transfer Deed” between a now deregistered company, Arkaroola Resources Pty Ltd, of which Mr Salfinger was the sole director, and the first respondent, Niugini Mining (Australia) Pty Ltd. By operation of the deed, Arkaroola agreed to purchase for $220,000 several mining tenements, freehold and Crown leaseholds, as well as information relating to the suitability of the tenements or adjacent areas for the production of zinc and copper. The deed was conditioned upon the consent to the transfer of the tenements and leaseholds by the relevant ministers of the Queensland Government, the second respondent.
In circumstances that are not altogether clear, Niugini Mining purported to terminate the agreement and to take back possession of the properties. Arkaroola took the stance that the purported termination was unlawful. In January 2001 it brought an action against Niugini Mining in the Supreme Court of Queensland. It sought an order for the specific performance of the deed or,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCAFC 102
Decision Date: 5 May 2008

CaseChat Overview and Summary

Salfinger v Niugini Mining (Australia) Pty Ltd was a case before the Court of Appeal of the Supreme Court of Queensland. The appellant, Mr Salfinger, appealed against the dismissal of his case against Niugini Mining (Australia) Pty Ltd and the first respondent, Dr Paulus, a director of the company. Mr Salfinger had sued the respondents alleging that they had breached their fiduciary duties and engaged in oppressive conduct towards him, a minority shareholder. The primary judge dismissed Mr Salfinger’s claims on the basis that they were statute-barred. Mr Salfinger sought to appeal against that decision, and the respondents sought to have the appeal dismissed for want of prosecution and to adjourn the hearing of the appeal.

The central issue before the Court of Appeal was whether the appeal should be dismissed for want of prosecution. The Court of Appeal also needed to determine whether the appeal should be adjourned to allow Mr Salfinger to amend his appeal documents. The Court needed to consider whether there was any good reason for the delay in filing the appeal documents and whether there was any prejudice to the respondents if the appeal was not dismissed.

The Court of Appeal found that there was no good reason for the delay in filing the appeal documents and that the delay had caused prejudice to the respondents. The Court found that the appeal should be dismissed for want of prosecution and that the application for an adjournment should be dismissed. The Court also dismissed the second respondent’s application to dismiss the appeal for want of prosecution. The Court ordered that the appellant pay the respondents’ costs of the application. The Court found that there was no basis for Mr Salfinger to amend his appeal documents and that the appeal was not likely to succeed.

Orders

Orders of the court

1. The application for an adjournment be dismissed.

2. The appellant pay the respondents’ costs of the application.

3. The second respondent’s application to dismiss the appeal for want of prosecution be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINKELSTEIN, JACOBSON AND GORDON JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN, JACOBSON AND GORDON JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 979 of 2007

JUDGES:	FINKELSTEIN, JACOBSON AND GORDON JJ
DATE OF ORDER:	5 MAY 2008
WHERE MADE:	MELBOURNE

JUDGES:	FINKELSTEIN, JACOBSON AND GORDON JJ
DATE:	5 MAY 2008
PLACE:	MELBOURNE