Vancleve Pty Ltd v Dorotea Pty Ltd [1986] FCA 660

A - 4

ay J r \ {

bb0

i Regge QLD. Gator 1984

IN THE FEDERAL COURT OF AUSTRALIA

) ) QUEENSLAND DISTRICT REGISTRY ) ) )

GENERAL DIVISTON

BETWEEN :

VANCLEVE PTY. LTD. (as Trustee for the VANCLEVE UNIT TRUST)

Applicant

DOROTBA PTY.LTD,.

Respondent

DOROTEA PTY. LTD.

Cross Claimant

VANCLEVE PTY. LTD. (as Trustee for the VANCLEVE UNIT TRUST)

Cross Respondent

SPENDER J. BRISBANE 12 DECEMBER, 1986.

EXTEMPORE REASONS FOR JUDGMENT

This is an application for leave to appeal from a judgment which I gave on 19 November 1986 where I refused Dorotea

Pty. Limited leave to amend its defence and cross-claim to plead

we

limitation defences. The application is brought under 0.52 r.10, and I abridge the time required for the hearing of the

application for leave, which is referred to in 0.19 r.3.

Any appeal will be an appeal from the exercise of a

discretion. In Brambles Holdings Ltd. v. Trade Practices Commission (1979) 28 A.L.R. 191, the Chief Judge said at 193 (at

a time when leave was not required) :-

"In dealing with such an appeal against an exercise of discretion this court will follow established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. Before an appellate court will interfere, it must appear that some error has been made in exercising the discretion: see House v. R. (1936) 55 C.L.R. 499 at 504-5; Lovell v. Lovell (1950) 81 C.L.R. 513 at 532-4; Rodgers v. Rodgers (1964) 114 C.L-.R. 608 at 619-20.

Indeed, where the discretion relates toa matter of practice or procedure, an appellate court is even more reluctant to interfere. It has been