Austin v Dwyer & Ors

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AUSTIN

v

DWYER & ORS

[2024] HCASL 31
M95/2023

  1. The applicant requires an extension of time within which to seek special leave to appeal from part of a judgment of the Court of Appeal of the Supreme Court of Victoria (Niall JA and J Forrest AJA) which dismissed an application for leave to appeal from a judgment of the County Court of Victoria (Judge Tran).

  2. An appeal to this Court would enjoy no prospects of success. It would therefore be futile to grant the extension of time that is sought.

  3. Special leave to appeal is refused.

    Gordon J

    Steward J

    7 March 2024

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Details
Case
[2024] HCASL 31
Decision Date

CaseChat Overview and Summary

In the matter of Austin v Dwyer & Ors, the applicant, Austin, sought an extension of time to appeal a decision made by the Court of Appeal of the Supreme Court of Victoria. This decision had previously dismissed an application for leave to appeal from a judgment of the County Court of Victoria. The Court of Appeal's decision was delivered by Niall JA and J Forrest AJA. The appeal to the High Court would focus on part of the judgment that rejected Austin's application for leave to appeal the County Court's judgment, which was presided over by Judge Tran.

The central legal issue before the Court was whether to grant an extension of time for the applicant to seek special leave to appeal from the Court of Appeal's decision. This extension was necessary as it would be futile to proceed with the appeal without it. The Court had to assess whether the application for special leave to appeal had any prospects of success. The Court of Appeal had already determined that the application for leave to appeal the County Court's judgment had no prospects of success. This finding influenced the Court's consideration of the application for an extension of time.

The Court held that granting the extension of time would be futile, as there were no prospects of success in appealing the Court of Appeal's decision. The reasoning was based on the fact that the Court of Appeal had already dismissed the application for leave to appeal from the County Court's judgment, which was a strong indication that the appeal would not be successful. The Court found that the applicant's appeal to this Court would not meet the threshold for special leave to appeal, and thus, the application for an extension of time was refused. This conclusion was reached on the basis that the applicant would not be able to demonstrate a reasonable prospect of success if the appeal were to proceed.

The final order of the Court was that special leave to appeal was refused. This decision was delivered by Gordon J, Steward J on 7 March 2024. The Court's refusal to grant the extension of time effectively concluded the applicant's opportunity to challenge the Court of Appeal's decision in the High Court.

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