Crayford Freight Services Ltd v Coral Seatel Navigation Co & Ors [1998] FCA 263

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - summary judgment - whether a cross claim irregularly filed out of time without leave was a nullity - whether leave to file the cross claim could be granted nunc pro tunc after the discontinuance of the principal proceeding - circumstances where solicitor's error provided ground for a grant of leave. Federal Court of Australia Act 1976 (Cth) ss 19, 51

Federal Court Rules O 5 r 5, O 11 r 20(11)

Dey v Victorian Railways Commissioners (1949) 78 CLR 62, applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied Webster v Lampard (1993) 177 CLR 598, applied Emanuele v Australian Securities Commission (1997) 188 CLR 114, applied Re Saunders (A Bankrupt) [1997] Ch 60, followed National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, followed Dorrough v Bank of Melbourne (Cooper J, 1 August 1996, unreported), distinguished Jess v Scott (1986) 12 FCR 187, applied CRAYFORD FREIGHT SERVICES LTD v CORAL SEATEL NAVIGATION CO, LLOYD TRIESTINO DI NAVIGAZIONE SPA and CONTSHIP CONTAINERLINES LIMITED NG 166 of 1997 BURCHETT, RYAN & MARSHALL JJ SYDNEY 26 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 166 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CRAYFORD FREIGHT SERVICES LTD

appellant

AND: CORAL SEATEL NAVIGATION CO

First Respondent

LLOYD TRIESTINO DI NAVIGAZIONE SPA

Second Respondent

CONTSHIP CONTAINERLINES LIMITED

Third Respondent

JUDGES: BURCHETT, RYAN & MARSHALL JJ

DATE OF ORDER: 26 MARCH 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be allowed; the orders made at first instance be set aside; and in lieu thereof it be ordered that the motion filed 19 August 1997 be dismissed and that leave be granted to the appellant to file its cross claim nunc pro tunc with effect from 22 July 1997. 3. The matter be remitted to the primary judge to give any further directions in relation to the cross claim and its hearing and determination. 4. The respondents Lloyd Triestino and Contship Containerlines pay the appellant's costs of the appeal. 5. There be no order as to costs of the motion before the primary judge.