IN THE FEDERAL COURT OF AUSTRALIA) QUEENSLAND DISTRICT REGISTRY QLD No. 119 of 1984 wesw GENERAL DIVISION BETWEEN: KEEN MAR CORPORATION PTY LTD, ALAN KEEN and TRUDY KEEN Applicants AND: LABRADOR PARK SHOPPING CENTRE PTY LTD First Respondent HERSFIELD DEVELOPMENTS PTY LTD Second Respondent MINUTE OF ORDER JUDGE: Fox J. DATE: 6 May 1988 WHERE MADE: Brisbane THE COURT ORDERS THAT: 1. Leave be given to the applicants to file and serve a notice of appeal by 4 pm Monday 9 May 1988. 2. The costs of the respondents to this application be the respondents' costs in the proposed appeal, and if the present applicants do not file an appeal, the costs will be the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD No. 119 of 1984 ) ) GENERAL DIVISION BETWEEN: KEEN MAR CORPORATION PTY LTD, ALAN KEEN and TRUDY KEEN Applicants AND: LABRADOR PARK SHOPPING CENTRE PTY LTD First Respondent AND: HERSFIELD DEVELOPMENTS PTY LTD Second Respondent CORAM: FOX J. DATE: 6 MAY 1988 REASONS FOR JUDGMENT EX TEMPORE FOX J. This is an application that was dated 13 April 1988 and was apparently filed on that day for extension of time to file and serve a notice of appeal. It is made. in reliance upon Order 52 rule 15(2) of the rules of court. The applicants were one of three sets of applicants whose cases were heard together. They had common issues of law and fact and were dealt with by his Honour in a single judgment. The respondents, Labrador Park Shopping Centre Pty Ltd and Hersfield Developments Pty Ltd, were the same in each case. There were in each of the cases cross-claims by the respondent, Labrador Park Shopping Centre Pty Ltd, against the respective applicants. Within the time limited. for appeal, but arguably on the last day limited for filing a notice of appeal all the other parties have appealed. The respondents to the present application, who were the respondents to the present applicants' application in the original proceedings, filed a notice of appeal on 31 March 1988. For that purpose, they filed the one document. The other applicants at or about the same time also filed notices of appeal against the dismissal of their application, by his Honour. So there are, in effect, pending before the appellate court appeals and cross-appeals involving the original respondents and two of the three original applicants. I say the other two applicants, but in fact the appeal lodged by the respondents in the first application names among the respondents to that appeal the present applicants. The reason that no notice of appeal was filed by the present applicants within the time limited was that they were in effect waiting to see what action took place on the part of the respondents. In the events as I have indicated, all the other parties appealed or cross-appealed whichever way one looks at the matter, at.the same time, being virtually, if not precisely on the last day limited for appeal. So much is this so that in fact the original applicants who were unsuccessful have named themselves appellants and have been named as respondents by the original respondents, and in their applications or their notices of appeal have named the original respondents as respondents to the appeal. The documents do not reflect appeals and crosSs-appeals although that is the effect of them. At some stage, something will have to be worked out as to how they should be regarded for the purpose of their conduct before the Full Court. From all this activity, as I have indicated, the present applicants have been apart. This was due to the voluntary decision to wait and see how things developed, particularly insofar as the original respondents were concerned. Their case in this regard is, of course, essentially that when they received the notice of appeal from the original respondents they did not have time to file notices of appeal (or cross-appeal) within time. The matter before me is one as to the proper exercise of my discretion. Counsel for the respondents to this application has pressed upon me in argument that where the word "reasons" appears in Order 52 rule 15(2), that requires that there be more than one reason, and he has cited some authority dealing admittedly with a different subject matter which he submits would support that result. For myself, I do not find that argument at all convincing. As a matter purely of logic, of course, it is always possible to generalise from specific reasons to a more general reason, but, in any event, I would not be disposed any more than were the judges who decided Jess v. Scott (1986) 70 ALR 185, to' confine the word "reasons" to multiple separate reasons. It is then put on behalf of the respondents that the only matter that is put as a reason by the applicants is the voluntary decision to wait and see to which I have already referred. It is put on behalf of the applicants that that is a perfectly permissible course of action and is not indicative of negligence or any of the other types of activities which have been referred to in some of the cases cited by the respondents in this case. I think on an earlier occasion when this matter first came before me, I made an observation, the short effect of which was that when the course is being followed, of waiting for the last minute, one has to be prepared to cope with a situation of the respondent filing process at that time, so that an intending appellant can file its notice of appeal. It is doubtless an understandable commercial attitude and an understandable non-commercial attitude, for that matter, for a party who has been left in a position of not having succeeded on its claim and not having lost on a counter-claim made against him to say, colloquially speaking, well, we have had enough and we will do nothing until someone else stirs things up. I think that can be regarded, if not a reason, at least as a background which tends to support rather than otherwise, the case that is made. Put another way, there is an explanation of the delay which is credible and understandable, although as I have indicated, the course is a dangerous one, The matter that weighs more heavily with me, although not stated in the affidavit as a ground of decision, but is quite apparent from the course of events as I have mentioned them, is that the present applicants are being brought into the appellate arena by the respondents to the present application, the original respondents. The present applicants are a party to those proceedings and doubtless all cases will be heard together. It would seem to me an unfair and unreasonable result that they should not in that situation be able to pursue again the claim they sort to pursue before the trial judge. Their co-applicants will be pressing their claims which, as I understand, involve common ingredients, to the point at which all proceedings were originally heard together. There is a feature which has not been mentioned by counsel on either side and that is that at some stage of the proceedings before his Honour, but after they had progressed toa point where some matter as between the present applicants and the respondents had been raised under s.52 of the Trade Practices Act 1974, that claim was abandoned, so that all that was left then was the common law claim upon which the present applicants, one of the original sets of applicants, relied. His Honour, nevertheless, proceeded to deal with the matter without any query being raised as to the continuing jurisdiction of the court to deal with it. I do not suggest that the court did not and does not have jurisdiction but I mention the matter because what is to be pursued in the appeal which it is now sought leave to commence is a common law claim only. If there is any problem arising out of all this doubtless it can be dealt with by the appellate court and it is certainly a more appropriate place for it to be dealt with than by myself on this application. The application for leave to appeal out of time was made arguably within 14 days. It may have been within 10 days of the time limited for filing a notice of appeal. Nothing much has been made on either side about that circumstance. If, of course, the application for extension of time had been made within the time limited for filing a notice of appeal, that would have raised different considerations under Order 52 rule 15(1), but, in any event the present application was filed soon after the time had expired. I am therefore of the view that the application should be granted and that the applicants should have leave to appeal, although out of time. That is, in the words of the rule, leave to file and serve a notice of appeal. With the application and supporting documents that have been filed there has been filed a notice of appeal. I have not studied it. Nothing has been said about it, except that it deals only with the common law matter. Whether it is a correct notice of appeal or has any defect is a matter that, of course, should be looked at carefully by counsel before it is actually filed. The notice of appeal should, however, be filed and served by 4 p.m. Monday 9 May 1988. The costs of the respondents to this application should be the respondents' costs in the proposed appeal and if the present applicants do not file an appeal, then they should be simply the respondents' costs. I certify that this and the six (6) preceding pages area true copy of the Reasons for Judgment herein of his Honour Mr. Justice Fox. St Cn rb bn i~ Associate: Date: 6 May 1988 Counsel for the Applicants: Mr A.J. Macklin Solicitors for the Applicants: Hempenstall O'Donoghue & Co. Counsel for the Respondents: Mr P. Kronberg Solicitors for the Respondents: Flower & Hart Date of hearing: Brisbane: 6 May 1988 Date judgment delivered: Brisbane: 6 May 1988