Salfinger v Nuigini Mining (Australia) Proprietary Limited (No.3)

[2007] FCA 1385

FEDERAL COURT OF AUSTRALIA

Salfinger v Nuigini Mining (Australia) Proprietary Limited (No.2)
[2007] FCA 1385

RODERICK NEIL SALFINGER v NUIGINI MINING (AUSTRALIA) PTY LTD  AND STATE OF QUEENSLAND
VID 1388 OF 2006

HEEREY J
29 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1388 OF 2006

BETWEEN:

RODERICK NEIL SALFINGER
Applicant

AND:

NUIGINI MINING (AUSTRALIA) PTY LTD
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	29 AUGUST 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s time to file and serve any affidavit material in relation to the separate question of the efficacy of the purported assignment be extended to 4pm on 4 September 2007.

2.The respondents’ time to file and serve any affidavit material in reply be extended to 10am on 7 September 2007.

3. The applicant’s motion by notice dated 24 August 2007 be dismissed with costs.

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 1388 OF 2006

BETWEEN:

RODERICK NEIL SALFINGER
Applicant

AND:

NUIGINI MINING (AUSTRALIA) PTY LTD
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:	HEEREY J
DATE:	29 AUGUST 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By motion dated 24 August 2007 the applicant sought to vary the order of this Court of 20 August.  Specifically the applicant sought an additional three weeks from 27 August to provide affidavit evidence for the determination of the separate question.

2. It is implicit in the motion, and so stated by Mr Salfinger in addressing the Court, that the making of this order would necessarily involve vacating the dates fixed for the hearing of the separate question on 10 and 11 September.

3. This proceeding commenced on 18 December 2006.  It arises out of the termination in December 2000 by the first respondent, Nuigini Mining (Australia) Pty Ltd, of an asset transfer deed made between that company and Arkaroola Resources Pty Ltd.  The applicant, Mr Salfinger, claims to be the assignee of causes, of action from Arkaroola, via a third entity, Crocodile International Manufacturing Limited.

4. On 15 June 2007 I made an order that the efficacy of the purported assignments of the causes of action be determined separately.  I made directions for the hearing of the separate question and, as mentioned, listed the hearing for 10 and 11 September 2007.  The directions included a direction that the applicant’s affidavits be filed on 20 July.  That direction has not been complied with and no affidavits have yet been filed.  Despite that, on 10 August, the first respondent filed its own affidavits.

5. In support of the present motion Mr Salfinger swore an affidavit.  The main ground relied on is the delay caused to him in searching for his daughter aged 20, who recently went missing in the United States for some five or six weeks.  He deposed that on about 12 July he received a telephone call from his daughter, in Memphis, Tennessee in which:

   …she seemed rushed and that something was bothering her.  The phone call was cut short when she announced that she had to rush off and I had no chance to ask her for a return phone number.  After this, email contact with my daughter then ceased.  I was at this time very concerned for her welfare.  I had no idea of where she was staying and no contact numbers to be able to reach her.  I then began to try and locate her.

6. Mr Salfinger deposed that that he made searches in the United States and Israel to locate his daughter.  Finally, on about 19 August, she was located in New York and appears to be safe and well.  Mr Salfinger returned to Australia on 23 August.

7. I accept what Mr Salfinger says about the temporary disappearance of his daughter, which fortunately has been resolved.  I would, however, observe that the direction I made on 15 June was some two and a half months ago, that is to say almost a month had expired before any trouble arose in relation to his daughter

8. The issues to be debated at the hearing are within a short compass and essentially turn on whether there was a valid assignment prior to the dissolution of the company Arkaroola.

9. In oral submissions, Mr Salfinger said that there are many small shareholders and creditors who are dependant on his efforts to pursue this action.

10. It is, however, of great importance that timetables fixed by the court are treated seriously and that parties know they must attend to directions so that the Court can dispose of disputes in a timely fashion.  

11. I am quite satisfied that, quite apart from the circumstance with his daughter, Mr Salfinger has had and will have adequate time to attend to the directions of the Court so that the separate question can be brought on at the time fixed. 

12. I am prepared to give the applicant a further extension, Counsel for the respondents indicated that a limited extension was not opposed. 

13. The applicant’s time to file and serve any affidavit material in relation to the separate question is extended to 4 pm on 4 September 2007.  The respondents’ time to file and serve any affidavit in reply is extended to 10 am on 7 September. The applicant’s motion dated 24 August is otherwise dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:       29 August 2007

Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent	M Brady
Solicitors for the First Respondent:	Blake Dawson Waldron
Counsel for the Second Respondent:	D Gibson QC and M O’Brien
Solicitor for the Second Respondent	Crown Solicitor
Date of Hearing:	29 August 2007
Date of Judgment:	29 August 2007