WCW P/L v Charthill Limited
[1992] FCA 762
•8 Oct 1992
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:
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
0
0
0