Mckanna, Michael Charles v Aspect Homes Pty Ltd [1983] FCA 397

CATCHWORDS

Practice and procedure - extension of time fot filing statement of claim - prejudice to defendant - relevance of deliberate refraining by defendant from applying to have

action dismissed for want of prosecution.

MICHAEL CHARLES McKANNA

Ve

ASPECT HOMES PTY. LIMITED

No. A.C.T. G48 of 1983

Coram: Blackburn, Sheppard & Neaves JJ.

16 November 1983

Canberra

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G48 of 1983

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MICHAEL CHARLES McKANNA Appellant AND: ASPECT HOMES PTY. LIMITED Respondent ORDER

Judges Making Order: Blackburn, Sheppard & Neaves JJ. Date of Order: 16 December 1983

Where Made: Canberra

THE COURT ORDERS that:

1. the appeal be allowed. 2. The order of the Supreme Court be set aside. 3. In lieu thereof, order that the appeal from the

Registrar be dismissed. 4. The statement of claim already filed be struck out.

5. The respondent pay the appellant's taxed costs of

the appeal and of the proceedings before the

Registrar and the judge of the Supreme Court.

'

THE COURT:

On 12 April 1977 the respondent to this appeal issued a writ out of the Supreme Court of the Australian Capital Territory against the appellant. The writ bore this general indorsement

"The plaintiff's claim is for damage

(sic) for breach of duty by the

defendant as a director of the

plaintiff".

An appearance was entered on 20 April 1977. Order 24 rule 1 of the Rules of the Supreme Court requires that the plaintiff shall deliver a statement of claim within 14 days after appearance. On 2 May 1983, more than six years after appearance, the respondent, as plaintiff, applied under Order 64 rule 5(1) of the Rules for an extension of time for the delivery of a statement of claim which made allegations about the conduct of the defendant as a director of the plaintiff between 2 May 1975 and 8 March 1977.