Feiglin v Ainsworth - [2014] VSC 233

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 3265

ESTHER CECLIA FEIGLIN	Applicant
V
DAVID SARGON AINSWORTH & ORS	Respondents

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 MAY 2014
DATE OF JUDGMENT:	22 MAY 2014
CASE MAY BE CITED AS:	FEIGLIN v AINSWORTH
MEDIUM NEUTRAL CITATION:	[2014] VSC 233

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Practice and Procedure – Appeal from an associate judge – Application for leave to appeal out of time – Whether extension should be granted – Relevant test – Applicant an assignee of causes of action – Delay beyond applicant’s control – Injustice if extension not granted - Supreme Court (General Civil Procedure) Rules 2005 (Vic), 77.06.2(6).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr J F Bleechmore	Behan Legal
For the Respondents	Mr S Stuckey	Dimos Lawyers

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Background................................................................................................................................... 1

C.. Relevant test.................................................................................................................................. 6

D.. Consideration of the length and reasons for delay............................................................... 7

D.1... Delay generally.................................................................................................................... 7
D.2... Delay since delivery of the Primary Judgment............................................................... 8

E... Other matters............................................................................................................................... 10

E.1... Prejudice............................................................................................................................. 10
E.2... Merits of the proposed appeal........................................................................................ 10
E.3... Feiglin’s interest in the proposed appeal...................................................................... 10

F... Conclusion................................................................................................................................... 11

HIS HONOUR:

A. Introduction

The 1^st plaintiff, Esther Celia Feiglin (“Feiglin”) applies to the court for an extension of time to serve a notice of appeal from a judgment delivered by an associate judge on 5 March 2013 (“the Primary Judgment”)[1]. The application is made by a summons filed on 6 August 2013.
[1]Feiglin v Ainsworth (No 2) [2013] VSC 83.

There have been interlocutory steps that have occurred after this summons was filed. It is not necessary to go into the detail. Whilst this time from 6 August 2013 until the hearing of this application is not irrelevant for the purposes of determining whether or not an extension ought to be granted, the timing of hearings and listings during this period has not been within the control of Feiglin. Although any delay may be relevant to the court’s discretion, principally, the relevant period of time to consider is from 5 March 2013 to 6 August 2013.

For the reasons that follow, the time for serving a notice of appeal from the Primary Judgment and the orders of the associate judge shall be extended to 4pm on 29 May 2014.

B. Background

This proceeding has a long history, both in relation to its underlying facts and also procedurally since the proceeding commenced. I do not propose to fully set out the background, but will provide a brief summary.

The proceeding was commenced on 15 June 2010. On 13 May 2011, the plaintiffs filed a proposed amended statement of claim. This proposed pleading first raised allegations that were the subject of the further amended statement of claim the subject of the proposed appeal. I will return to them shortly. The application for leave to amend to introduce these claims was refused by the court. On 19 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Feiglin v Ainsworth

Details

AGLC: Feiglin v Ainsworth [2014] VSC 233
Case: [2014] VSC 233
Decision Date: 22 MAY 2014

CaseChat Overview and Summary

The case of Feiglin v Ainsworth involved a dispute regarding an application for leave to appeal out of time. The appellant, Feiglin, sought to appeal against a decision made by an associate judge, and subsequently applied for an extension of time to file the appeal. The respondent, Ainsworth, opposed the application on the grounds that it was not in the interests of justice to grant the extension. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the applicant should be granted leave to appeal out of time. The court was required to consider the relevant criteria for granting an extension of time for an appeal, as set out in the Supreme Court (General Civil Procedure) Rules 2005 (Vic), 77.06.2(6). Specifically, the court had to determine whether the delay in filing the appeal was beyond the control of the applicant, and whether it would be unjust to refuse the application for an extension of time.

The court held that the relevant test for granting an extension of time for an appeal out of time was set out in the relevant rules. The court found that the applicant, Feiglin, was an assignee of causes of action and that the delay in filing the appeal was beyond their control. The court also found that it would be unjust to refuse the application for an extension of time, given the circumstances of the case. Accordingly, the court granted the application for leave to appeal out of time.

The court ordered that the respondent, Ainsworth, pay the applicant's costs of the application for leave to appeal out of time, to be taxed on the standard basis. The court also ordered that the appeal be heard on its merits, with the respondent to file their respondent's submissions within 14 days of the date of the order.

Orders