Trans Atlantic Freight Services Pty Ltd v Olympic Airways SA

[1991] FCA 294

44 , 41

JUDGMENT NO. 2. ... ........

IN THE FEDERAL COURT OF AUSTRALIA	1	NG318 of 1987
NEW SOUTH WALES DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN:  TRANS ATLANTIC FREIGHT SERVICES PTY LTD

Applicant

AND: OLYMPIC AIRWAYS SA

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 FEBRUARY 1991
WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:

1.   leave to file, out of time, the notice of motion received in the Registry on 3 December 1990, be granted;

2.    the notice of motion, for which leave to file has been granted above, be dismissed;

3.    the applicant company pay the respondent's costs of and incidental to the notice of motion, to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA	1	NG318 of 1987
NEW SOUTH WmES DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: TRANS ATLANTIC FREIGHT SERVICES PTY LTD

Applicant

AND: OLYMPIC AIRWAYS SA

Respondent

CORAM: PINCUS J.

PLACE: SYDNEY

W: 12 FEBRUARY 1991

EX TEMPORE REASONS FOR JUDGMENT

The matter before the Court is as I understand it an

application for leave to file a notice of motion out of time.

Mr Debuse, who appears for the respondent, intimated that he

doesn't object to leave being given and the substance of the matter dealt with. There will therefore be leave to file out of time the notice of motion which was apparently received in the registry on 3 December 1990.

The notice of motion asks for three orders:

1.    that orders made on 5 October 1989 by Sheppard J. be set aside;

2.    that orders made on 11 February 1988 by Gummow J. be set aside; and

1. that matter number G318 of 1987 be restored and a hearing date fixed.

It appears that the applicant wishes to pursue proceedings relating to events which occurred some time in 1984 and subsequently. The applicant has been represented today by Mr Adamopoulos who has explained to me his earnest desire to pursue the matter and I accept for the purpose of these proceedings that that desire exists and that the case is in that sense bona fide. It has, however, some history which should be briefly mentioned.

The application was filed in 1987 and it was accompanied by a statement of claim which was, as Mr Debuse mentioned, struck out. A further statement of claim was filed in September 1987 and about the same time, or perhaps a little before, Burchett J. had before him an application for interlocutory relief which was refused. In refusing the application for interlocutory relief, his Honour held in effect that he did not regard the case as one of any strength.

Subsequently, on 11 February 1988 in proceedings, the transcript of which Mr Adamopoulos has shown me, the	application was struck out by Gummow J. Then on 5 October
1989, Sheppard J. dealt with a notice of motion by which the applicant sought to set aside the order of Gummow J. of 11 February 1988. I have read the reasons of Sheppard J. dealing with that matter.

Mr Adamopoulos says, in effect, that the order of

Sheppard J. was incorrect and that I should disagree with it.

He points to certain events which have occurred since that order was made; for example, to what he claims to be ill- intentioned actions on the part of the respondent against him relating to bankruptcy proceedings and criminal proceedings. However, it seems clear that the matters to which Mr Adamopoulos refers, which occurred, so he says, since the order of Sheppard J., cannot affect the correctness of that order.

The Court has, of course, no jurisdiction to set aside Sheppard J. 'S order simply because it is disagreed in. Having read the reasons of Sheppard J., I must respectfully say that if I had such jurisdiction I would not exercise it, because the conclusion at which his Honour arrived seems to me correct.

Apart from that, the passage of time has to be kept
in mind. Gummow J.'s order was made some three years ago.

Sheppard J.'s order, which is also attacked, was made in

extraordinary circumstances that after such a lapse of time an	October 1989. We are here early in 1991. It would only be in
order of the Court would be set aside.
The circumstances which have confronted Mr Adamopoulos include some illness of which I've taken note, and he has, it seems to me, a genuine sense of grievance. Neither of these, however, can possibly justify granting the orders
which he seeks, and the notice of motion, Leave to file which I have granted, will be dismissed.
The order will be made that the applicant company pay the respondent's costs of and incidental to the notice of motion to be taxed.

I certify that this and the

three preceding pages are a true copy of the reasons for judgment herein of ~r Justice Pincus.

G---CL.wc-

Associate