MINISTER FOR MINERAL RESOURCES v BRANTAG PTY LIMITED [1995] NSWCA 297

MINISTER FOR MINERAL RESOURCES v BRANTAG PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 22 May 1995

[1995] NSWCA 297

Sheller JA. This is an application by the Minister for Mines for an order that time for appealing against an order of Young J be extended. The application is supported by an affidavit of Donald James Fearon of 2 May 1995 which I have read.

The opponent, Brantag Pty Limited, which would be the respondent in the appeal, opposes this application and relies upon an affidavit of Philip Anthony Hewitt of 19 May 1995. It appears from the affidavit of Mr Fearon that the delay which led to a notice of appeal not being filed within time was caused by the Minister's desire to obtain an opinion from the Attorney General before deciding to appeal. The obtaining of this opinion was delayed as a result of a change in Attorney General caused by the recent State Election. In fact the last day for filing the notice of appeal was one day before the Attorney General's response was received.

Mr Gruzman, who appears for the opponent, submits that there will be some prejudice to his client resulting from the fact that the amount which Young Jordered to be paid to the opponent, namely $229,980.40 has been paid. That includes an amount of interest. Prejudice is said to lie in the doubt as to how those funds could be applied by the opponent while awaiting the outcome of any appeal. This seems to me to be no more or less than the prejudice that any respondent suffers if a verdict is paid to it pending the outcome of an appeal.

I am satisfied on the material before me that this is an appropriate case for an order to be made.

The costs of this application will be costs in the appeal. I order that the time for appealing against the decision of Young J of 29 March 1995 be extended up to and including 3 May 1995. The costs of this application will be costs in the appeal.