NORCO CO-OPERATIVE LIMITED v AUSTRALIAN CO-OPERATIVE FOODS LIMITED [1999] NSWCA 412

New South Wales Court of Appeal CITATION : NORCO CO-OPERATIVE LIMITED v AUSTRALIAN CO-OPERATIVE FOODS LIMITED [1999] NSWCA 412 FILE NUMBER(S) : CA 40742/99 HEARING DATE(S) : 8 November 1999 JUDGMENT DATE : 8 November 1999

PARTIES : Norco Co-Operative Limited v Australian Co-Operative Foods Limited JUDGMENT OF : Stein JA at 1

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : EQ 4662/98 LOWER COURT JUDICIAL OFFICER : Bryson J

COUNSEL : J Garnsey QC (Claimant) J Ireland QC (Opponent) SOLICITORS : Allen Allen & Hemsley (Claimant) Addisons (Opponent) CATCHWORDS : NOTICE OF MOTION - application for extension of time to appeal - application that order of trial judge be stayed pending the determination of appeal or further order ACTS CITED : n/a CASES CITED: Gallo v Dawson [1990] 64 ALJR 458 Wykanak v Rockdale City Council (unreported, Court of Appeal, 3 June 1999) DECISION : Notice of Motion dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40742/99 STEIN JA Monday, 8 November 1999 NORCO CO-OPERATIVE LIMITED v AUSTRALIAN CO-OPERATIVE FOODS LIMITED JUDGMENT 1 STEIN JA: This is a hearing of an amended notice of motion brought by the claimant Norco Co-operative Limited against the opponent, Australian Co-operative Foods Limited, which is sometimes referred to as 'Dairy Farmers'. 2 The claimant seeks two orders. The first is that the time for appealing against certain orders made by Bryson J on 31 March 1999 be extended. The second is that order number 1 made by Bryson J be stayed pending the determination of the appeal or further order. 3 Before proceeding to deal with the motion it is convenient to state the principles to be applied by the court in dealing with an application to extend time to appeal. They are conveniently to be found in Gallo v Dawson [1990] 64 ALJR 458 in the judgment given by McHugh J at 459. 4 I read a portion of his Honour's judgment from the left hand column of 459, starting at about point D. His Honour said: The grant of an extension of time under this rule and I interpolate, we are dealing with an equivalent rule - is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice, upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension to time: see Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 and 92; Jess v Scott [1986] 12 FCR 187 at 194 - 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal.