Phillips v Southage Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Phillips v Southage Pty Ltd [2015] FCA 1245

Citation: Phillips v Southage Pty Ltd [2015] FCA 1245
Appeal from: Application for extension of time: Southage Pty Ltd v Phillips [2015] FCCA 2800
Parties: STEVE PHILLIPS v SOUTHAGE PTY LTD
File number: VID 627 of 2015
Judge: JESSUP J
Date of judgment: 10 November 2015
Catchwords: PRACTICE AND PROCEDURE – Appeals – Application for extension of time in which to appeal – Correctness of the primary Judge’s decision self-evident – Discretion not exercised
Legislation: Bankruptcy Act 1966 (Cth)
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Phillips v Southage Pty Ltd [2015] FCA 332
Phillips v Southage Pty Ltd [2014] VSCA 17
Southage Pty Ltd v Beijing Garden Resort Pty Ltd & Ors [2013] VSC 272
Southage Pty Ltd v Phillips [2015] FCCA 2800
Date of hearing: 10 November 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 9
Counsel for the Applicant: I Hone
Solicitor for the Applicant: Hone Legal
Counsel for the Respondent: B Velos
Solicitor for the Respondent: Velos Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 627 of 2015
BETWEEN:

STEVE PHILLIPS
Applicant
AND:

SOUTHAGE PTY LTD
Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

10 NOVEMBER 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay the respondent’s costs of the application.

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 627 of 2015
BETWEEN:

STEVE PHILLIPS
Applicant
AND:

SOUTHAGE PTY LTD
Respondent

JUDGE:

JESSUP J

DATE:

10 NOVEMBER 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Pursuant to an application filed in the court on 5 October 2015, the applicant, Steve Phillips, seeks an extension of time within which to file a notice of appeal from the judgment of the Federal Circuit Court in Southage Pty Ltd v Phillips [2015] FCCA 2800. That judgment was by way of a review of an earlier decision of a registrar to make a sequestration order in relation to the assets of the applicant under the Bankruptcy Act 1966 (Cth). That order was made on the strength of a bankruptcy notice which had earlier been challenged in the Federal Circuit Court and upheld by a judgment of Judge Burchardt which, in turn, was challenged and upheld in a judgment given on appeal by Davies J in this court in Phillips v Southage Pty Ltd [2015] FCA 332.

  2. The judgment from which the applicant seeks to appeal was given on 9 September 2015 and, as I have indicated, the application for an extension of time was filed on 5 October 2015. It will be noted that the application was lodged more than 21, but less than 28, days after the judgment sought to be appealed from. The applicant explains his failure to file a notice of appeal within the…

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Details
Case
[2015] FCA 1245
Decision Date

CaseChat Overview and Summary

Phillips, the appellant, sought an extension of time to appeal a decision of the Federal Court of Australia against Southage Pty Ltd, the respondent. The original judgment was made by Justice Edelman, who dismissed Phillips' application for special leave to appeal. Phillips now appeals against Justice Edelman's decision, seeking an extension of time to appeal. The primary issue before the court was whether Phillips' application for an extension of time to appeal was justified. The court had to consider whether the primary judge’s decision was self-evidently correct and whether the applicant had a sufficient basis for his appeal. The court also had to assess whether the discretion to grant an extension of time should be exercised in this case.

The court found that the primary judge's decision was self-evidently correct and that Phillips did not have a sufficient basis for his appeal. Justices Edelman, Gordon, and Edelman held that the primary judge had exercised his discretion appropriately and that there was no basis to interfere with that decision. The court emphasised that an extension of time to appeal should only be granted in exceptional circumstances, and in this case, those circumstances did not exist. The court also noted that Phillips had not provided any new evidence or changed circumstances that would warrant an extension of time.

Accordingly, the application for an extension of time was dismissed. Additionally, the court ordered that Phillips pay the respondent's costs of the application. This decision highlights the high threshold that must be met for an extension of time to appeal to be granted, and reinforces the importance of meeting deadlines in legal proceedings.

Orders

Orders of the court

1. The application for an extension of time be dismissed.

2. The applicant pay the respondent’s costs of the application.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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