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 1584Cases 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
ApplicantAND: 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
ApplicantAND: DEAKIN UNIVERSITY
Respondent
JUDGE:
PAGONE J
DATE:
28 NOVEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
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.
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…
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- Case
- [2013] FCA 1272
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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