JUDGMENT No. O38 9 7 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. SG 22 of 1994 eee ew 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. The factors which the court takes into account on such an application are, first, whether in all the circumstances the decision 1s attended by sufficient doubt to warrant it being re- considered by the Full Court, and second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Von Doussa J struck out the Statement of Claim of the applicant on the basis that it did not disclose any cause of action by the applicant against the respondent. His Honour granted leave to the applicant to file a further Amended a») -3- Statement of Claim pleading a cause of action based on suggested facts advanced by his counsel in oral argument. I am now informed that the applicant does not wish to file such an amended statement of claim: he wishes to be able to rely on the Amended Statement of Claim struck out by von Doussa J. If it is to be supposed that the decision of von Doussa J is wrong, I am satisfied that substantial injustice would result if leave in this case were refused. However, I am not in any way satisfied that the decision of von Doussa J is attended by sufficient doubt to warrant the re- consideration of this matter by the Full Court. I accept the argument of Dr Baxter, who appeared with Mr Warde for the respondent, that the case put forward by Mr Scragg, counsel for the applicant, as demonstrating possible error in the reasoning of von Doussa J, is not the case actually pleaded by the applicants. It appears that it is a new cause of action which might well be able to be pursued in fresh proceedings. I therefore refuse the applicant an extension of time within which to seek leave to appeal. Further, I indicate that had I granted an extension of time I would, nonetheless, have dismissed the application for leave to appeal. On this basis I understand that it is agreed between the parties that an order should be made on the Notice of Motion dated 24 November 1994 filed on behalf of the respondent, that the proceedings herein be dismissed. I so order. The respondent will have its costs of both notices of motion from the applicant. I use the descriptions of the parties in the action. Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent Hearing Date I certify that this and the preceding pages are a true copy of the Ex Tempore Reasons for Judgment of Justice Branson Associate Lue Dated: (q Becombey (AA H Mr P Scragg : Peter Scragg : Dr R Baxter with him Mr J Warde : Johnson Wanter & Slattery : 19 December 1994 a