Trans Atlantic Freight Services Pty Ltd v Olympic Airways S.A.

[1991] FCA 399

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1     NG 271 of 1991

NEW SOUTH WALES DISTRICT REGISTRY ) NG 272 of 1991

1     NG 273 of 1991

GENERAL DIVISION )

BETWEEN:  TRANS ATLANTIC PREIGHT SERVICES PTY
LIMITED

AND :

nesponaent

l 15 JUL 1991

FEDERAL COURT OF
AUSTRALIA

CORAM: Burchett J.	PRINCIPAL
PLACE: Sydney	REGISTRY
DATE : 28 June 1991

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

Before me are three applications (which, by the consent of the parties, have been heard together) for extension of time to file and serve notices of appeal.

of which he is a director, on that footing.

It has been made clear that there is a question whether all of the matters are not related to interlocutory judgments, so that the extensions required would relate to applications for leave to appeal. No point is taken that the applicant is entitled in the present applications to seek whichever form of extension is appropriate, and the cases have been argued by Mr Adamopoulos, who by leave appears for the applicant company,

The orders to which the applications relate, in time sequence, are the following:

First: an order of Mr Justice Gummow made on 11 February 1988, when his Honour dismissed proceedings and ordered the applicant to pay the respondent's costs, including reserved costs. That order was not immediately taken out, but was eventually sealed and entered on 20 May 1990. I shall return to indicate, in a moment, the circumstances in which it came to be made and the nature of the proceedings, but before I do so, I shall complete the enumeration of the orders in respect of which extensions of time are sought.

The second was a decision of Mr Justice Sheppard given on 5 October 1989 when Mr Justice Sheppard refused to set aside the order made by Mr Justice Gummow on 11 February 1988.

The third is the order of Mr Justice Pincus made 12

February 1991, when his Honour refused to set aside both the order of Mr Justice Gummow and the order of

Mr Justice Sheppard, and refused to restore matter

number G 318 of 1987 to the list and to fix it for
hearing.
Returning to the litigation to which matter number G 318

of 1987 related, and which was dealt with by the order of Mr Justice Gummow, that litigation had been commenced in 1987, when application was made to me for interlocutory relief, which I refused, substantially on the ground that a prima facie case had not been made out in the sense in which that expression is commonly used in relation to proceedings for interlocutory injunctions. The proceedings related to allegations made by MI Adamopoulos on behalf of the applicant company, of which, as I have said, he is a director, in connection with its dealings with the respondent, Olympic Airways S.A. Mr Adamopoulos claimed that certain representations had been made to him, particularly in relation to over-riding commission and other special commissions, the making of which in all the circumstances was misleading and deceptive within the meaning of S. 52 of the Trade Practices

1974, and was associated with other conduct of the
respondent that was also so misleading and deceptive. The

application for interlocutory relief came before me on 10

August 1987, when I said it was easy to sympathise with the	applicant's commercial plight, but, for various reasons, it
did not appear to me that a sufficient case had been made out.
Following the dismissal of the application for interlocutory relief, Mr Adamopoulos left Australia and went to Greece. The matter came before me again for directions on 29 October 1987, when a solicitor, Mr Vardas, appeared on behalf of the applicant, but was without instructions regarding the further prosecution of the matter. I ordered that the proceedings be stood out of the list, to be restored on seven days notice, and in default of earlier restoration to be listed for further directions on a date in 1988 to be fixed by the registrar. Such a date was fixed, and it was on this date that the matter came before Mr Justice Gummow, that is to say on 11 February 1988. Mr Justice Gummow made the order that I have already referred to, and he did so after ascertaining that M r Vardas was still without instructions and that Mr Adamopoulos was still in Greece. Directions previously given had not been complied with.
After Mr Adamopoulos's return to Australia, attempts were made by him to resuscitate the matter, and, in particular, he made the application to Mr Justice Sheppard already mentioned. That having been refused, it now appears that he contemplated the lodging of a notice of appeal, but there were difficulties about that, related to the payment of the appropriate fee, to the form of the notice which Mr Adamopoulos tried to lodge
without legal representation, and to the question whether he did not first require leave. In the upshot, no notice of
appeal was filed within time, and no application for leave to appeal was made until the application which has come before me. But Mr Adamopoulos did lodge a notice of motion filed 3 December 1990, seeking the setting aside of the orders of Mr Justice Sheppard and Mr Justice Gummow and the restoration of the matter for hearing, which came before Mr Justice Pincus on 12 February 1991 and was dismissed by him. That is the third decision in respect of which an application has now been made to me.
Mr Adamopoulos seeks to explain the very long delays which have occurred on the basis of his own ill health, and on the basis of the considerable calls upon his time and energies made by a host of other proceedings. So far as his health is concerned, there is ample reference in the material before me to health problems, but little precision as to their nature, or as to the extent to which they might incapacitate Mr Adamopoulos. It is plain that they have not done so totally, since during the relevant period he has been able to make the applications to which I have already referred, in each of which he was actively involved as director and representative of the company, which was the applicant. He was also involved in the numerous other proceedings to which his submission made reference. Those proceedings arose out of the same matrix of facts which gave rise to the section 52 proceedings in this court, for their origin was in his commercial arrangements
with Olympic Airways S.A., for which he acted in an agency capacity as a travel agent.
Olympic Airways, and also Qantas, claimed in proceedings in the commercial causes jurisdiction of the Supreme Court of New South Wales a large sum of money arising out of Mr Adamopoulos's activities as a travel agent, and those of his company, the applicant. A judgment was obtained, after a number of hearings involving more than one judge of the
Supreme Court of New South Wales, and a bankruptcy notice was issued. A sequestration order was made, and Mr Adamopoulos appealed to a full court of this court, which set aside the sequestration order. As yet, no further sequestration order has been made, and the dispute concerning the judgment upon which the bankruptcy notice was issued is presently before the court of appeal division of the Supreme Court of New South Wales. The court of appeal reserved its decision on 20 February 1991, and has not yet delivered it.
It is easy to accept that all these matters, which I have only summarised in skeleton form, and undoubtedly should be fleshed out with many litigious excursions and alarms, have preoccupied Mr Adamopoulos to a very great extent. However, the rules of the court set the framework within which litigation must be conducted, and parties who obtain orders are, generally speaking, entitled to expect that any challenge to those orders will be conducted within the framework of the rules.

I in each of the three matters with which I am now

concerned, leave to appeal was required, Order 52 Division 1A rule 10 required that application be made by motion on notice, to be filed and served within seven days from the pronouncement of the interlocutory judgment or within such further time as the court or a judge might allow. If there was a right of appeal, as distinct from a right to seek l-eave

to appeal, the matter was governed by Order 52 Division 2 rule 15, which requires that a notice of appeal be filed and served within 21 days, or within such further time as is allowed by the court or a judge upon application made by motion upon notice filed within the period of 21 days; but by sub-rule 2, it is provided that notwithstanding anything in the preceding sub-rule the court or a judge, for special reasons, may at any time give leave to file and serve a notice of appeal. What is meant by special reasons, in that context, was elaborated by a full court in Jess v. Scott (1986) 12 FCR 187. At 195 the joint judgment of the full court describes the effect of the provision for special reasons in the following terms:

"It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."

I think that description is also applicable to the power given to extend time in respect of an application for leave to

appeal. In these cases, I have had regard to all the matters put	to me by Mr Adamopoulos, and to the evidence upon which he
relies, which I have endeavoured only to summarise in what I have just said. It does not seem to me that, in the circumstances of this case, those matters are such as to lead to the conclusion that time should be extended in respect of any of the three matters whether any of the decisions is interlocutory or final. For that reason, I have found it
unnecessary to enter upon the question whether any of the decisions could be regarded as other than interlocutory.

I therefore dismiss each application with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate: m- OiLV@.	I/
Dated: 28 June 1991