FEDERAL COURT OF AUSTRALIA

Stergiou v Phelps [1999] FCA 1563

STANLEY STERGIOU and EKATERINE STERGIOU v MICHAEL JAMES PHELPS and MARGARET ELIZABETH REID and MICHAEL JOHN DEASEY trading as PHELPS REID

A48 of 1999

WILCOX, EINFELD and KENNY JJ

CANBERRA

9 NOVEMBER 1999

THE COURT ORDERS THAT:

1.                  The application for extension of time be dismissed.

2.                  The applicants, Stanley Stergiou and Ekaterine Stergiou, pay the costs of the respondents, Michael James Phelps, Margaret Elizabeth Reid and Michael John Deasey.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EXTEMPORE REASONS FOR JUDGMENT

1                     THE COURT:  This is an application for an extension of time to appeal against a decision of the Full Court of the Supreme Court of the Australian Capital Territory (Gallop ACJ, Higgins and Ryan JJ) dismissing an appeal against a decision of the Master of the Supreme Court, entering summary judgment for the defendants in the action, Michael James Phelps, Margaret Elizabeth Reid and Michael John Deasey, trading as Phelps Reid, solicitors.

2                     The decision of the Full Court was given on 9 July 1996.  The present applicants, Stanley Stergiou and Ekaterine Stergiou, first sought to appeal against the decision to the High Court of Australia.  On 7 November 1996, a Deputy Registrar of the High Court wrote to the applicants pointing out that the High Court had no jurisdiction to deal with the matter and drawing attention to the jurisdiction of this Court.  However, the applicants took no action to engage the jurisdiction of this Court until they filed their application for extension of time on 30 June 1999.

3                     On the hearing of the application for extension of time, Mr Stergiou appeared for himself and his wife.  When asked about the delay of almost three years between the date of the Full Court decision and the filing of the application for extension of time, Mr Stergiou referred to his state of health and said he had been engaged in other legal matters.  However, there is before us no evidence about these claims.  The delay is not satisfactorily explained. 

4                     The Full Court shared the Master's view that the applicants’ Statement of Claim disclosed no cause of action.  We agree.  We appreciate that the Statement of Claim was drafted by Mr Stergiou without legal assistance; so it would be wrong to take a pedantic view of it.  Provided the document discloses the substance of a case known to the law, that should suffice; however, this pleading does not do that.  We have questioned Mr Stergiou over some time in an endeavour to understand what is the case he seeks to make, but we have not succeeded in discerning any arguable cause of action.  It would be wrong to allow a case based on this Statement of Claim to go to trial. 

5                     Primarily for that reason, it is not appropriate to extend the time for appealing against the Full Court's decision.  The application for extension of time must be dismissed and the Court will so order.

[An application was made for costs.]

6                     The order of the Court will be that the application for extension of time be dismissed and the applicants for extension of time pay the respondents’ costs.

Associate:

Dated:              9 November 1999