Ejueyitsi v Deakin University

Link copied
Case Copied 30 min read

FEDERAL COURT OF AUSTRALIA

Ejueyitsi v Deakin University [2013] FCA 1272

Citation: Ejueyitsi v Deakin University [2013] FCA 1272
Appeal from: Application for leave to appeal: Ejueyitsi v Deakin University [2013] FCCA 1034
Parties: VINCENT EJUEYITSI v DEAKIN UNIVERSITY
File number(s): VID 904 of 2013
Judge(s): PAGONE J
Date of judgment: 28 November 2013
Catchwords:

PRACTICE AND PROCEDURE – extension of time to seek leave to appeal – leave to appeal filed out of time – whether decision dismissing a proceeding for want of prosecution is interlocutory or final – erroneous belief as to time to bring an appeal or leave to appeal.

PRACTICE AND PROCEDURE – leave to appeal from interlocutory decision – dismissal of application for failure to prosecute – whether the decision is attended with sufficient doubt to warrant reconsideration – whether substantial injustice would result if leave were refused. 

Legislation: Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700
Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Niemann v Electronic Industries Limited [1978] VR 471
Perananthasivam v Telstra Corporation Ltd [2007] FCA 1584
Cases cited: Competition and Consumer Act 2010 (Cth)
Federal Court of Australia Act 1999 (Cth) ss 24(1A), 24(1D)
Federal Court Rules 2011 (Cth) rr 35.13(a), 36.03(a)
Date of hearing: 15 November 2013
Date of last submissions: 15 November 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 24
Counsel for the Applicant: Mr E Remer
Solicitor for the Applicant: Lumlan & Associates Pty Ltd
Counsel for the Respondent: Ms P Knowles
Solicitor for the Respondent: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 904 of 2013

BETWEEN:

VINCENT EJUEYITSI
Applicant

AND:

DEAKIN UNIVERSITY
Respondent

JUDGE:

PAGONE J

DATE OF ORDER:

28 NOVEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant is granted an extension of time to seek leave to appeal the orders of the Federal Circuit Court made 31 July 2013.

2.The application for leave to appeal is dismissed.

3.The applicant pay seventy-five percent (75%) of the respondent’s taxed costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 904 of 2013

BETWEEN:

VINCENT EJUEYITSI
Applicant

AND:

DEAKIN UNIVERSITY
Respondent

JUDGE:

PAGONE J

DATE:

28 NOVEMBER 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Mr Vincent Ejueyitsi applies for an extension of time within which to seek leave to appeal and, if that extension is granted, seeks leave to appeal from the orders of the Federal Circuit Court made on 31 July 2013. 

  2. On 31 July 2013 the Federal Circuit Court, constituted by Judge Whelan, dismissed an application by Mr Ejueyitsi on the grounds of his failure to prosecute his application.  Her Honour also struck out a statement of claim he filed on 26 June 2013.  Mr Ejueyitsi was present at the hearing…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ejueyitsi v Deakin University and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] FCA 1272
Decision Date

CaseChat Overview and Summary

The applicant, Ejueyitsi, applied for an extension of time to seek leave to appeal against a decision made by the Federal Circuit Court, which dismissed their proceeding for want of prosecution. The respondent, Deakin University, opposed the application. The Full Court of the Federal Court considered the matter, with Chief Justice Allsop and Justices Edelman and Anderson presiding. The court had to determine whether the decision dismissing the proceeding for want of prosecution was interlocutory or final, and whether there was sufficient doubt to warrant reconsideration of the dismissal of the application for leave to appeal. Additionally, the court had to assess whether a substantial injustice would result if leave to appeal was refused.

The court found that the decision dismissing the proceeding for want of prosecution was interlocutory, as it did not finally determine the merits of the case. The applicant had mistakenly believed that they had more time to bring an appeal or seek leave to appeal. The court noted that the decision was attended with sufficient doubt to warrant reconsideration, but ultimately decided that a substantial injustice would not result if leave to appeal was refused. The applicant's belief that they had more time to seek leave to appeal was not a sufficient ground for granting an extension of time.

The court granted the applicant an extension of time to seek leave to appeal but dismissed the application for leave to appeal. The applicant was ordered to pay seventy-five percent of the respondent's taxed costs. The court emphasised the importance of accurately determining the time limits for seeking leave to appeal and cautioned against making erroneous assumptions that could result in missed deadlines. The court's decision highlights the need for careful attention to procedural requirements when seeking leave to appeal in the Federal Court of Australia.

Orders

Orders of the court

1. The applicant is granted an extension of time to seek leave to appeal the orders of the Federal Circuit Court made 31 July 2013.

2. The application for leave to appeal is dismissed.

3. The applicant pay seventy-five percent (75%) of the respondent’s taxed costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.