FEDERAL COURT OF AUSTRALIA

Garrett v Universal Holidays Pty Ltd [2007] FCA 526

ANDREW MORTON GARRETT v UNIVERSAL HOLIDAYS PTY LTD, SHU MU TSENG, EVAJADE PTY LTD, STEPHEN JAMES DUNCAN (TRUSTEE IN BANKRUPTCY), PETER IVAN MACKS (TRUSTEE IN BANKRUPTCY) AND BERINGER BLASS WINE ESTATES LIMITED

SAD 277 OF 2006

MANSFIELD J

13 APRIL 2007

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application for an extension of time in which to seek leave to appeal from the decision of Lander J on 6 October 2006 in matter SAD 5 of 2006 is refused. 

2.                  The applicant is to pay the costs of the second and fifth respondents to this application.

3.                  If the fourth respondent files and serves an appearance by 20 April 2007, the applicant is to pay the costs of the fourth respondent to this application.

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

REASONS FOR DECISION

1                     This is an application for an extension of time to file and serve a notice of appeal from a decision of Lander J on 6 October 2006 in matter SAD 5 of 2006.  Lander J dismissed the applicant’s notice of motion of 8 June 2006 seeking to be joined as a party to that action in his capacity as trustee of the Andrew Garrett Family Trust No 3.  His Honour also dismissed oral applications made on that day for the applicant to be joined in his capacity as trustee of the Andrew Garrett Family Trust No 2 and the Andrew Garrett Family Trust No 3.  See Universal Holidays Pty Ltd v Tseng [2006] FCA 1833 (the decision).  The background to the proceeding is set out in the decision.  I shall not repeat it.

2                     The decision was an interlocutory order: see Field v Secretary to the Department of Human Services (unreported, Victorian Supreme Court of Appeal, Batt, Kenny and Buchanan JJA, 1 June 1998).  Pursuant to O 52 r 10 of the Federal Court Rules, the applicant must seek leave of the court to appeal from that judgment, within 7 days of it being handed down.  Strictly speaking, he should have applied for an extension of time to seek leave to appeal, and then leave to appeal, from the decision.

3                     At a directions hearing on 19 January 2007, I gave leave to the applicant to amend his application to include an application for leave to appeal if the extension of time sought was granted.  I also directed the applicant to file and serve by 6 February 2007 an affidavit setting out the grounds on which he sought an extension of time and leave to appeal and an amended proposed notice of appeal.  I fixed 21 February 2007 as the date for hearing of the application.

4                     The applicant did not file any amended application, or any amended proposed notice of appeal.  I will, however, proceed on the basis that the applicant has validly applied for an extension of time in which to seek leave to appeal, and leave to appeal, from the decision.  On 9 February 2007, the applicant did file an affidavit, presumably pursuant to the leave of 19 January 2007.  The affidavit attaches ten exhibits concerning trusts to which the applicant is connected.  Much of the affidavit is the same as an affidavit filed in the Supreme Court of Victoria on 24 November 2005 (that action was transferred to this Court and became action SAD 5 of 2006).  It does not really address issues relevant to the present application, and was not referred to by the applicant in his oral submissions. 

5                     In the application for extension of time, the applicant states that the grounds of the application appear in the affidavits of the applicant dated 14 June, 24 September and 3 October 2006 “received for filing in this action” (presumably referring to matter SAD 5 of 2006), in the transcripts in that proceeding of 18 September, 27 September and 6 October 2006, in the affidavits of Nicholas Samuel Morton Garrett and Tom Francis Hayward Garrett both dated 3 October 2006, and in the draft notice of appeal filed 18 December 2006.

6                     Only the notice of appeal has been filed in this matter.  Moreover, the affidavits of the applicant dated 24 September and 3 October 2006, of Nicholas Samuel Morton Garrett and of Tom Francis Hayward Garrett were not filed in SAD 5 of 2006, pursuant to orders of Lander J of 6 October 2006.  Consequently, at the hearing on 21 February 2007, the applicant relied only upon his affidavit of 9 February 2007, the decision, and the transcript of the application before Lander J on 6 October 2007.

7                     The applicant accepted that there was no evidence as to why he should be granted an extension of time.  Leave to appeal should have been sought by 13 October 2006.  There was no explanation for the delay.  I gave the applicant until 7 March 2007 to file any further evidence as to why an extension of time should be granted, together with an outline of his contentions.

8                     The applicant has not filed any further material.

9                     On 11 March 2007 and again on 23 March 2007, the applicant wrote to my associate explaining that a party in another matter he is “involved in”, namely matter SAD 29 of 2005, has applied to have that matter heard with matter SAD 5 of 2006.  If such an order is made, then that would (he said) make redundant his application to be joined as a party in matter SAD 5 of 2006.  The decision itself pointed out that matter SAD 5 of 2006 concerned, as his Honour explained at [17], the same issue as that in matter SAD 29 of 2005 upon which he had reserved his decision.  Matter SAD 5 of 2006 was in the nature of an interpleader action, whereas matter SAD 29 of 2005 was the proceeding in which the principal issues were actually ventilated.

10                  I refused the applicant’s request by letter on 28 March 2007, copied to all parties.  The overlap of issues between the two proceedings was known to the applicant at all times, and he persevered in his joinder applications notwithstanding.  No new material circumstance had arisen to justify simply adjourning this application to an indefinite future date.

11                  To be granted an extension of time, the applicant must provide a satisfactory explanation for the delay in making the application. The court should also assess the prospects of such leave being given: see Deighton v Telstra Corporation Ltd (unreported, Lee, Heerey and Nicholson JJ, 17 October 1997); Croker v Philips Electronics Australia Ltd [2000] FCA 1731; Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802.

12                  As noted, the applicant has provided no, far less any satisfactory, explanation for his delay in seeking leave to appeal from the decision.  On that basis alone, I would be disposed to reject the application.  However, I shall consider additional factors.

13                  In considering whether an applicant should be granted leave to appeal, the court should consider whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

14                  On both those matters, I think the scales weigh quite heavily against the applicant.

15                  His proposed grounds of appeal are uninformative.  They do not identify any particular error of law or fact.  They assert that Lander J erred in dismissing the notice of motion filed on 8 June 2006 and the oral applications, apparently because the standing of the applicant is the same as that of Evajade Pty Ltd as joint trustee of two trusts.

16                  The applicant has misunderstood the reasons given by Lander J.  His Honour dismissed the application to join the applicant as a party because the outcome of matter SAD 29 of 2005 in which judgment is reserved may have an impact on the necessity of such an order.  His Honour did not state that the applicant should not be joined as a party to matter SAD 5 of 2006 in any event.  In fact, in regard to the oral application for the applicant to be joined as co-trustee with the second respondent in matter SAD 5 of 2006, Lander J said at [18] that such an application might need to be addressed in due course.  The joinder applications were refused at that point in time as a matter of practicality, and the applicant was free to pursue or renew his joinder application, if necessary and appropriate, following the judgment in matter SAD 29 of 2005.

17                  The applicant does not suggest in his grounds of appeal or in his submissions that his Honour erred in taking the progression of the other matter into consideration, or that his assessment of the present practical position was erroneous.  It was a decision made about the more appropriate course of action pending the delivery of judgment in matter SAD 29 of 2005.

18                  I do not consider that the decision of Lander J, seen in its proper context, is attended with sufficient doubt to warrant its being reconsidered by the Full Court. 

19                  Nor, for the same reasons, is it desirable to grant leave to appeal from the decision to avoid substantial injustice to the applicant.  The reverse is the case.  If it is necessary or desirable for him to re-apply to become a party to matter SAD 5 of 2006 after judgment has been delivered in matter SAD 29 of 2005, as Lander J said, he may do so.

20                  Those matters were raised with the applicant at the hearing on 21 February 2007.  He nevertheless persisted with the application.  In those circumstances, I think he should pay the costs of the second, fourth and fifth respondents (those who appeared at the hearing) of the application.  I make that order in the light of the applicant’s contention that he should not be ordered to pay the costs because the interpleader action (matter SAD 5 of 2006) led to the monies the subject of the interpleader proceedings (originally Supreme Court of Victoria matter No 7323 of 2005) being paid into Court in matter SAD 5 of 2006 rather than in matter SAD 29 of 2005.  In my view, those amounts are properly paid into Court in the interpleader action.  But in any event it does not matter.  It was apparent that the reserved judgment in matter SAD 29 of 2005 will resolve the entitlement to those monies and, as Lander J said, in the light of that judgment it may become appropriate for the joinder application of the applicant to matter SAD 5 of 2006 to be renewed.

21                  I note two other matters.

22                  Although the draft notice of appeal complained also of “orders no 5 to 10” as being erroneous, no argument was advanced by the applicant in support of them.  Those orders appear to relate to the various affidavits proposed to be filed by the applicant and not filed, as noted above.  No submissions identified any relevance to that material on this application, or suggested that Lander J had failed to understand the relevant facts or had overlooked any relevant facts.

23                  Secondly, the draft notice of appeal complained that by the decision the applicant was ordered to pay costs of certain respondents.  The argument made orally was that his Honour did not appreciate the need for the applicant to be joined as a party to matter SAD 5 of 2006 because that was the interpleader action in which the disputed funds were held in Court.  I have rejected that same contention when dealing with the costs of this application.

24                  For those reasons, the application for extension of time in which to seek leave to appeal from the decision is refused.  The applicant is to pay the costs of the second and fifth respondents to this application and, subject to the fourth respondent filing and serving his appearance by 20 April 2007 (as his counsel indicated on 21 February 2007 that he would do), the costs of the fourth respondent to this application.

Associate:

Dated:         12 April 2007