Salfinger v Niugini Mining (Australia) Pty Ltd
[2008] FCA 571
•24 April 2008
FEDERAL COURT OF AUSTRALIA
Salfinger v Niugini Mining (Australia) Pty Ltd
2008 FCA 571RODERICK NEIL SALFINGER v NIUGINI MINING (AUSTRALIA) PTY LTD (ACN 011 060 898) and STATE OF QUEENSLAND
VID 0979 OF 2007
GORDON J
24 APRIL 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 0979 OF 2007
BETWEEN:
RODERICK NEIL SALFINGER
ApplicantAND:
NIUGINI MINING (AUSTRALIA) PTY LTD (ACN 011 060 898)
First RespondentSTATE OF QUEENSLAND
Second Respondent
JUDGE:
GORDON J
DATE OF ORDER:
24 APRIL 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Notice of Motion filed by the Applicant on 24 April 2008 be dismissed.
2.Paragraph 2 of the Second Respondent’s Notice of Motion, filed 18 April 2008, be adjourned to a hearing before the Full Court at 10.15am on 5 May 2008.
3.The time for compliance with the orders made by Chief Justice Black on 5 February 2008 be extended as follows:
·in paragraph 3, by substituting “4.00pm Australian Standard Time (“AST”) on 30 April 2008” for the phrase “3 weeks prior to the date fixed for the hearing”;
·in paragraph 4, by substituting “4.00pm AST on 2 May 2008” for the phrase “2 weeks prior to the date fixed for the hearing”; and
·in paragraph 5, by substituting “4.00pm AST on 5 May 2008” for the phrase “1 week prior to the date fixed for the hearing”.
4.The Appellant pay the Respondents’ costs of today.
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 0979 OF 2007
BETWEEN:
RODERICK NEIL SALFINGER
ApplicantAND:
NIUGINI MINING (AUSTRALIA) PTY LTD (ACN 011 060 898)
First RespondentSTATE OF QUEENSLAND
Second Respondent
JUDGE:
GORDON J
DATE:
24 APRIL 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 29 October 2007, the Appellant, Roderick Neil Salfinger (“Mr Salfinger”), lodged an appeal against the whole of the judgment of his Honour Heerey J given on 8 October 2007. On 5 February 2008, Chief Justice Black granted Mr Salfinger leave to apply at the commencement of the hearing of the appeal for leave to appeal in respect of grounds 1 and 2 of the Notice of the Appeal.
The issues on appeal largely arise from an asset transfer deed dated 20 January 2000 between Arkaroola Resources Pty Ltd (“Arkaroola”) and the First Respondent, Niugini Mining (Australia) Pty Ltd (“the First Respondent”). Mr Salfinger was the sole director of Arkaroola. In December 2000, the First Respondent terminated the asset transfer deed. Arkaroola commenced proceedings in the Queensland Supreme Court in December 2000 asserting that the termination of the deed was unlawful. Those proceedings were struck out in October 2001.
On 15 December 2006, Mr Salfinger filed proceedings in the Federal Court based on the alleged wrongful termination of the asset transfer deed. The First Respondent and the State of Queensland were the named Respondents. On 15 June 2007, Heerey J ordered the determination of a separate question – namely, the efficacy of purported assignments by which Mr Salfinger alleged he had standing to bring the Federal Court proceedings (“the separate question”). Mr Salfinger applied on two separate occasions to adjourn the hearing of this separate question. The first was on 29 August 2007, when Heerey J refused a motion to effectively adjourn the hearing of the separate question set down for 10 and 11 September 2007: Salfinger v Niugini Mining (Australia) Pty Ltd [2007] FCA 1385. The second application for adjournment was on the final day of the hearing of the separate question itself. That application was also refused. On 8 October 2007, Heerey J answered the separate question adverse to Mr Salfinger and ordered that there be judgment for the Respondents and made other orders dealing with costs.
The Appeal against the whole of the judgment of Heerey J was lodged by Mr Salfinger on 29 October 2007. By Notice of Motion dated 18 April 2008, the Second Respondent, the State of Queensland, applies to the Court for an order that the appeal be dismissed for want of prosecution and further, or alternatively, for failure to comply with the directions made by Chief Justice Black on 5 February 2008. Alternatively, the State of Queensland seeks an order for further directions in relation to the conduct of the appeal and costs on an indemnity basis. The application is supported by the First Respondent. An affidavit was filed by the solicitor for each Respondent in support of the applications. I will describe these applications as the “Respondents’ dismissal applications”.
It is neither necessary nor appropriate to set out in detail the interlocutory steps that Mr Salfinger has failed to comply with in the prosecution of his appeal. Default started at the outset with the failure of Mr Salfinger to file and serve a draft index of the appeal book within the time specified by the rules. Since then, Mr Salfinger’s solicitors filed a Notice Ceasing to Act under cover of a letter dated 14 April 2008. Most significantly, Mr Salfinger has not complied with the orders made by Chief Justice Black on 5 February 2008, including a failure to file written submissions in accordance with those orders.
On 17 April 2008, Mr Salfinger wrote to the Respondents making an informal request for an adjournment of the hearing of the appeal. A copy of the email was also sent to the Court. The Respondents did not consent to the adjournment. On 19 April 2008, a further email was sent by Mr Salfinger to the Respondents and to the Court stating that he was unwell but expected to be recovered sufficiently by 23 April 2008 to file an application for an adjournment of the appeal supported by an affidavit. No application was filed in Australia on 23 April 2008.
This morning, immediately after the matter was called for hearing of the Respondents’ dismissal applications, Mr Salfinger informed the Court that he had just filed a Notice of Motion seeking an adjournment of the hearing of the appeal. The affidavit sworn by Mr Salfinger in support of the application had not been filed or served. The matter was stood down to enable the Respondents to consider the application. The application for adjournment was opposed by the Respondents.
There are two matters upon which Mr Salfinger relies in support of his application for an adjournment of the appeal: the cost to him of the marriage of his two daughters and the impact of that cost on his financial position. The matters referred to by Mr Salfinger are matters that are not unique to Mr Salfinger. They are matters that he has been aware of for some time and are not matters which, in my view, have prevented him from prosecuting the appeal.
Mr Salfinger deposes to the fact that his first daughter is said to have announced her engagement and forthcoming marriage in January 2008. The date of the engagement of the second daughter is described as “recently announced”. The date of the second engagement is not disclosed. In the end, the dates of the engagements and the weddings can be put to one side; Mr Salfinger’s failure to comply with the Court rules and the prosecution of the appeal arose before the announcement of the engagement of the elder daughter. Further, although I accept Mr Salfinger’s evidence about the cost of the weddings, there is nothing to suggest that he is unable in the short term to seek to raise the necessary funds, or to make alternative arrangements, to prosecute his appeal.
Finally and no less significantly, this is Mr Salfinger’s appeal. The appeal has been on foot since October 2007. I am satisfied that there has been and, no less significantly, there still is, adequate time for Mr Salfinger to attend to the prosecution of his appeal. There are still some 11 days before the appeal is to be heard. Much can happen in that period. Mr Salfinger’s Notice of Motion for an adjournment of the hearing of the appeal is dismissed.
Dismissal of that Notice of Motion, and the basis upon which it has been dismissed, has certain consequences. It leaves the Respondents’ dismissal applications to be considered. In the circumstances I have just outlined, the appropriate course is for paragraph 1 of the Second Respondent’s Notice of Motion to be adjourned for hearing before the Full Court at 10.15am on 5 May 2008. As I have said, if Mr Salfinger wishes to prosecute his appeal, there is still sufficient time for him to do so.
That leaves the second paragraph of the Second Respondent’s Notice of Motion seeking an alternative timetable to enable the appeal to be prosecuted. In my view, the appropriate orders should be:
1.The Notice of Motion filed by the Applicant on 24 April 2008 be dismissed.
2.Paragraph 2 of the Second Respondent’s Notice of Motion, filed 18 April 2008, be adjourned to a hearing before the Full Court at 10.15am on 5 May 2008.
3.The time for compliance with the orders made by Chief Justice Black on 5 February 2008 as follows:
·in paragraph 3, by substituting “4.00pm Australian Standard Time (“AST”) on 30 April 2008” for the phrase “3 weeks prior to the date fixed for the hearing”;
·in paragraph 4, by substituting “4.00pm AST on 2 May 2008” for the phrase “2 weeks prior to the date fixed for the hearing”; and
·in paragraph 5, by substituting “4.00pm AST on 5 May 2008” for the phrase “1 week prior to the date fixed for the hearing”.
That leaves the question of costs. It is of great importance that timetables fixed by the Court are complied with by the parties and, where there has been an inability to do so, that the concerns about or reasons for that inability are brought to the Court’s attention early. It is because of Mr Salfinger’s failure to comply with the orders made by Chief Justice Black on 5 February 2008 that the applications by the Respondents were necessary. On any view, the Respondents should have their costs of today. However, the principal application has been stood over to hearing before the Full Court on 5 May 2008 and the questions of the costs of that motion and the basis upon which any costs should be awarded will be adjourned for consideration by the Full Court on 5 May 2008.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate:
Dated: 24 April 2008
Counsel for the Applicant: Self-represented Counsel for the First Respondent: Mr M. T. Brady Solicitor for the First Respondent: Blake Dawson Counsel for the Second Respondent: Mr D. O'Brien Solicitor for the Second Respondent: Crown Law
Date of Hearing: 24 April 2008 Date of Judgment: 24 April 2008
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