Morton, J.R.C. v Franks, M. & Ors [1995] FCA 267

CATCHWORDS PRACTICE AND PROCEDURE - respondent's application to strike out appeal - whether appeal filed within time but served out of time is incompetent within the meaning of order 52, rule 18 of the Federal Court Rules - whether judgment appealed against interlocutory or final - Court has regard to the legal rather than the practical effect of the judgment - service out of time does not render appeal incompetent. PRACTICE AND PROCEDURE - application to stay orders pending appeal - need to adduce evidence on appeal - whether evidence is fresh evidence - relevance to stay application of the need to adduce evidence on appeal. Federal Court of Australia Act, 1974 (Cth) Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246 Licul v Corney (1976) 50 ALJR 439 Southern Cross Exploration NL v Fire and All Risks Insurance Company Limited [No 2] (1990) 21 NSWLR 200 Moore v Tooheys Limited (1981) 56 FLR 345 Sanders v Sanders (1881) 19 Ch 373 Raybos Australia Pty Limited v Tectran Corporation Pty Limited (1986) 6 NSWLR 674 JEFFREY ROY CHARLES MORTON v MARK FRANKS & ORS No. NG850 OF 1994 Beazley J 20 February 1995 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG850 of 1994 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: JEFFREY ROY CHARLES MORTON Appellant AND: MARK FRANKS First Respondent BARBARA FRANKS Second Respondent VIDEO RESOURCE GROUP INCORPORATED Third Respondent BUDLYRE PTY LIMITED (ACN 053 808 996) Fourth Respondent BENELAN PTY LIMITED (ACN 053 713 018) Fifth Respondent TRUEFEAT PTY LIMITED (ACN 053 664 010) Sixth Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 20 February 1995 MINUTE OF ORDERS The Court orders that: 1. the appellant's notice of motion filed 2 February 1995 be dismissed. 2. the respondents' notice of motion filed 10 February 1995 be dismissed. 2. 3. each party pay his and its own costs of each notice of motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.