FEDERAL COURT OF AUSTRALIA

Eden Construction Pty Limited v State of New South Wales [2007] FCA 1317

EDEN CONSTRUCTION PTY LIMITED v STATE OF NEW SOUTH WALES

NSD 1259 OF 2007

STONE J

22 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

            1. The application for an extension of time to file and serve a notice of appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from a judgment delivered by Graham J on 9 May 2007.  His Honour’s judgment is extremely long and goes into complicated facts in considerable detail.  The application for an extension of time was filed on 4 July 2007, considerably outside the time limit of 21 days within which an appeal would have been required to be filed under O 52 r 15 of the Federal Court Rules.  Attached to the application for an extension of time is a draft Notice of Appeal which does not contain any grounds of appeal.  It merely identifies that part of the judgment from which the applicant seeks to appeal.

2                     An affidavit of Mr Cesare Filardo, Managing Director of the applicant company, filed on 4 July with the application and draft notice of appeal refers to the difficulty that the applicant has had in obtaining legal representation because of its impecunious financial circumstances.  The matter was originally listed for hearing on 25 July and the applicant, having indicated that it would seek an extension of that time, was ordered to file an affidavit detailing the efforts made to secure legal representation.  The applicant has filed two such affidavits and in brief they both refer to difficulties arising from an inability to fund legal representation. 

3                     Although the applicant has hopes of money being made available to remedy this difficulty, those hopes, in my view, are not sufficiently well-based to justify my further extending the time for the hearing of this application.  Therefore I rejected an application made to adjourn the hearing of the application today for a further six weeks.  Mr Filardo, who was given leave to represent the applicant company, spoke with conviction and eloquence but was not able to identify any grounds of appeal that would warrant an extension of time being granted.  It may be that no such grounds exist or it may be that Mr Filardo’s lack of legal training has made it difficult if not impossible for him to identify any grounds.  Either way, the result is that I can have no confidence that an appeal would have any chance of success. 

4                     In dealing with applications such as this the court has to do justice to both parties.  The respondent has made detailed submissions opposing both the vacating of the hearing today and the application for leave.  Those submissions are supported by an affidavit of Denise Sharon Wright which refers to past history in this matter including applications to the Ombudsman.  It is not necessary for me to take those matters into account because it seems to me that the inadequacies of the present application are sufficient to warrant my concern about the merits of this appeal.  Ultimately no grounds have been identified and it is neither possible nor appropriate for the court to attempt to identify grounds of appeal.

5                     Given my lack of confidence that the appeal would have any likelihood of success, the application for an extension of time must be dismissed.  There is no reason why costs should not follow the event and therefore the orders of the court are that the application for an extension of time to file and serve a notice of appeal is dismissed with costs.

Associate:

Dated:  28 August 2007