Francis v Eggleston Mitchell Lawyers Pty Ltd

[2012] FCA 301

FEDERAL COURT OF AUSTRALIA

Francis v Eggleston Mitchell Lawyers Pty Ltd[2012] FCA 301

Citation:		Francis v Eggleston Mitchell Lawyers Pty Ltd [2012] FCA 301
Appeal from:		Francis v Eggleston Mitchell Lawyers [2011] FMCA 805
Parties:		LOUISE FRANCIS v EGGLESTON MITCHELL LAWYERS PTY LTD (FORMERLY EGGLESTON MITCHELL LAWYERS)
File number:		VID 1182 of 2011
Judge:		JESSUP J
Date of judgment:		27 March 2012
Legislation:		Federal Court Rules 2011 r5.22, 36.74
Date of hearing:	19 March 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	4
Counsel for the Appellant:	Mr C Daly-Thompson
Solicitor for the Appellant:	Evans Ellis Lawyers
Counsel for the Respondent:	Mr R Mitchell
Solicitor for the Respondent:	Wilmoth Field Warne

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1182 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: LOUISE FRANCIS
Appellant

AND: EGGLESTON MITCHELL LAWYERS PTY LTD (FORMERLY EGGLESTON MITCHELL LAWYERS)
Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	19 MARCH 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondent’s interlocutory application be dismissed.

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 1182 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: LOUISE FRANCIS
Appellant

AND: EGGLESTON MITCHELL LAWYERS PTY LTD (FORMERLY EGGLESTON MITCHELL LAWYERS)
Respondent

JUDGE:	JESSUP J
DATE:	27 MARCH 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 19 March 2012, I dismissed the respondent’s interlocutory application for the striking out of the appeal in this proceeding.  These are my reasons for having done so.

2. The only circumstance relied upon by the respondent for the relief which it sought was that the appellant had not complied with an order made at the callover by Gray J in the following terms:

   The appellant have leave to file and serve an amended Notice of Appeal on or before 21 February 2012.

   The appellant took no step in response to that order. The respondent appears to have taken the view that this amounted to a failure to comply with an order of the court, such as would, for example, amount to an act of default under r 5.22 of the Federal Court Rules 2011, or a basis for the dismissal of the appeal under r 36.74(1)(a) of those rules.

3. The respondent’s position involved a misunderstanding of what Gray J had done.  His Honour did not require the appellant to file an amended Notice of Appeal.  Rather, he gave leave for her to do so.  As she has not taken up that leave, the appellant will, henceforth, be required to rely upon her existing Notice of Appeal, with any deficiencies that it may contain.  The present, however, is not an occasion to consider the adequacy of the appellant’s existing Notice of Appeal, as that was not the basis of the respondent’s interlocutory application.  Neither, I should add, was any failure on the part of the appellant to prosecute her appeal, as required by the rules. 

4. It goes without saying, and should be apparent from what I have mentioned above, that my dismissal of the respondent’s interlocutory application on this occasion will not stand in the way of any future such application as the respondent might be minded to bring, based upon such deficiencies as it is able to identify in the Notice of Appeal, upon the appellant’s failure to prosecute her appeal, or upon such other grounds as may properly be available. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       27 March 2012