Naiama Pastoral Co P/L v. Elders Finance & Investment Co Ltd [1994] FCA 1036

JUDGMENT No. O38 9 7

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY No. SG 22 of 1994

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GENERAL DIVISTON

BETWEEN:

NAIAMA PASTORAL CO PTY LTD

Applicant RECEIVED - and - 29 DEC 1994 FEDERAL COURT OF ELDERS FINANCE AND AUSTRALIA INVESTMENT CO LIMITED PRINCIPAL,

REGISTRY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

CORAM: Branson J. PLACE: Adelaide DATE: 19 December 1994

This matter comes before the court pursuant to a notice of motion dated 14 December 1994. By motion the applicant in the principle proceedings, Naiama Pastoral Co Pty Limited, seeks leave to appeal the decision of von Doussa J made on 14 October 1994. The judgment of von Doussa J is plainly an interlocutory judgment of the court. It resulted in no final determination of the rights of the parties. It gave the applicant in the proceedings leave

to re~plead their statement of claim.

As the judgment was an interlocutory judgment it was incumbent

upon the applicant to seek leave to appeal, either at the time

i

-2- the judgment was pronounced or by a notice filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought, or within such further time as the court or a judge may allow. No formal application for any extension of time has been made to this court. I am, however, prepared to regard Mr Scragg's argument today as involving an oral application for an extension of time within which to seek leave to appeal from von Doussa J's

judgment. '

The notice of motion in this matter was taken out two months after the date of the judgment of von Doussa J and nearly three weeks after the respondent filed a notice of motion seeking an order that the proceedings be stayed or dismissed pursuant to Order 11 rule 23 of the Federal Court Rules. It seems to me that no proper explanation has been given for a delay of this magnitude. Notwithstanding that, I have considered whether or not this would be an appropriate matter in which to grant leave to appeal, even if the matter of timeliness were set aside.