WCW P/L v Charthill Limited

[1992] FCA 762

IN THE FEDERAL COURT OF AUSTFWLIA )	No. QG 87 of 1992
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1
ON APPEAL FROM OLNEY J

BETWEEN: W.C.W. PTY. LTD.

Appellant

AND :  CHARTHILL LIMITED

First Respondent

AND:  CHARTHILL BUSINESS BROKERS (OLD) PTY. LTD.

Second Respondent

AND :  HENRI VAN RYN

Third Respondent

ELZA VERONICA BRAIN

Fourth Respondent

BOLSTER & CO. (A FIRM[

Fifth Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drumrnond J
DATE OF ORDER:	8 October, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:
NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

Pursuant to Order 1 rule 8 of the Federal Court Rules, the appellant be relieved from the consequences of not complying with Order 52 rule 15(1).

2.        The appellant pay the fifth respondent's taxed costs of the appellant's application filed 15 September, 1992.

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 87 of 1992
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1
ON APPEAL FROM OLNEY J

BETWEEN: W.C.W. PTY. LTD.

Appellant

AND :  CHARTHILL LIMITED

First Respondent

AND:  CHARTHILL BUSINESS BROKERS (OLD) PTY. LTD.

Second Respondent

AND :  HENRI VAN RYN

Third Respondent

AND :  ELZA VERONICA BRAIN

Fourth Respondent

AND :  BOLSTER & CO. (A FIRM)

Fifth Respondent

Coram:	Drummond J
Date:	8 October, 1992
Place :	Brisbane

EX TEMPORE REASONS FOR JUDGMENT

In this matter a notice of appeal from the decision of Olney J, given on 25 May, 1992, was filed on 15 June, 1992, that is, on the last day of the 21 day period allowed under Order 52 rule 15 of the Federal Court Rules. The notice was not served, so far as is presently relevant, on the fifth

respondent ("respondent") until on or about 29 June, 1992.

The material before me indicates that during the week commencing 15 June, 1992, the solicitor having the carriage of the appeal was busy on other matters and did not, in fact, get the service copies of the notice back from the court registry until 19 June, 1992. There is no explanation in the material before me for the delay in the balance of the period of about ten days that passed before service took place on the respondent. The inference is that that portion of delay is explicable by lack of attention or inefficiency on the part of the solicitor having the conduct of the appeal.

No suggestion has been made that the respondent has been prejudiced by the period of two weeks delay that passed, although a submission was put to me that in deciding whether or not to relieve the appellant of the consequences of this period of delay, and consequent non-compliance with the rules, the appellant was required to show that the appeal had some prospects of success or was not frivolous. No authority has been cited to me to indicate that that is a necessary

consideration that I am required to take ~ n t o account in

exercising the various discretions reposed in me under the relevant rules of court. I do not propose to undertake that task.

There is one further factor which needs to be taken into account in deciding what should be done. On the occasion when the respondent's solicitors drew attention to the non- compliance by the appellant with Order 52 rule 15(1), those

solicitors also sought security from the appellant for the respondent's costs of the appeal. That matter was resolved during an appearance before Beaumont J on 25 August last, when a consent order was made under which the appellant is to provide security to the value of $5,000.00 for the respondent's costs of the appeal. By raising the question of security, the respondent treated the appeal as one which was on foot.

It seems to me that, in the absence of prejudice, coupled with the actions of the respondent in seeking security, and notwithstanding the lack of a clear explanation for why the rules were not complied with, this is an

appropriate case for me to grant the relief sought.

I certify that this and the preceding

two pages is a true copy of the
reasons for judgment hereln of the

Honourable Mr.

Associate:

Date:	p October, 1992
IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 87 of 1992
DUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1
ON APPEAL FROM OLNEY J

BETWEEN: W.C.W. PTY. LTD.

Appellant

AND:  CHARTHILL LIMITED

First Respondent

AND :  CHARTHILL BUSINESS BROKERS (OLD) PTY. LTD.

Second Respondent

AND:  HENRI VAN RYN

Third Respondent

ELZA VERONICA BRAIN

Fourth Respondent

BOLSTER & CO. (A FIRM\

Fifth Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	8 October, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1. Pursuant to Order 1 rule 8 of the Federal Court

   Rules, the appellant be relieved from the

consequences of not complying with Order 52 rule
15(1).

The appellant pay the fifth respondent's taxed costs of the appellant's application filed 15 September, 1992.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 87 of 1992
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1
ON APPEAL FROM OLNEY J

BETWEEN: W.C.W. PTY. LTD.

Appellant

AND :  CHARTHILL LIMITED

First Respondent

AND:  CHARTHILL BUSINESS BROKERS (OLD) PTY. LTD.

Second Respondent

AND:  HENRI VAN RYN

Third Respondent

AND :  ELZA VERONICA BRAIN

Fourth Respondent

AND:  BOLSTER & CO. (A FIRM1

Fifth Respondent

Coram:	Drummond J
Date:	8 October, 1992

Place: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

In this matter a notice of appeal from the decision of Olney J, glven on 25 May, 1992, was filed on 15 June, 1992, that is, on the last day of the 21 day period allowed under Order 52 rule 15 of the Federal Court Rules. The notice was not served, so far as is presently relevant, on the fifth

respondent ("respondent") until on or about 29 June, 1992.

The material before me indicates that during the week commencing 15 June, 1992, the solicitor having the carriage of the appeal was busy on other matters and did not, in fact, get the service copies of the notice back from the court registry until 19 June, 1992. There is no explanation in the material before me for the delay in the balance of the period of about ten days that passed before service took place on the respondent. The inference is that that portion of delay is explicable by lack of attention or inefficiency on the part of the solicitor having the conduct of the appeal.

No suggestion has been made that the respondent has been prejudiced by the period of two weeks delay that passed, although a submission was put to me that in deciding whether or not to relieve the appellant of the consequences of this period of delay, and consequent non-compliance with the rules, the appellant was required to show that the appeal had some prospects of success or was not frivolous. No authority has been cited to me to indicate that that is a necessary

consideration that I am required to take into account in	exercising the various discretions reposed in me under the
relevant rules of court. I do not propose to undertake that task.
There is one further factor which needs to be taken into account in deciding what should be done. On the occasion when the respondent's solicitors drew attention to the non- compliance by the appellant with Order 52 rule 15(1), those solicitors also sought security from the appellant for the respondent's costs of the appeal. That matter was resolved during an appearance before Beaumont J on 25 August last, when a consent order was made under which the appellant is to provide security to the value of $5,000.00 for the respondent's costs of the appeal. By raising the question of security, the respondent treated the appeal as one which was on foot.
It seems to me that, in the absence of prejudice, coupled with the actions of the respondent in seeking security, and notwithstanding the lack of a clear explanation for why the rules were not complied with, this is an appropriate case for me to grant the relief sought.
I certify that this and the preceding
two pages is a true copy of the reasons for judgment herein of the Honourable Mr.
Associate:
Date:  h , ( October, 1952