Sheikholeslami v Brungs

[2007] FCA 602

FEDERAL COURT OF AUSTRALIA

Sheikholeslami v Brungs [2007] FCA 602

ROYA SHEIKHOLESLAMI v MICHAEL BRUNGS AND UNIVERSITY OF NEW SOUTH WALES
NSD 280 OF 2007

ALLSOP J
2 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 280 OF 2007

BETWEEN:

ROYA SHEIKHOLESLAMI
Applicant

AND:

MICHAEL BRUNGS
First Respondent

UNIVERSITY OF NEW SOUTH WALES
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	2 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve an application be dismissed.

2.The applicant pay the respondents’ costs.

THE COURT DIRECTS THAT:

3.If any further application for an extension of time be filed by the applicant, such proceeding, subject to any application of a party, be placed in the docket of Justice Allsop.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 280 OF 2007

BETWEEN:

ROYA SHEIKHOLESLAMI
Applicant

AND:

MICHAEL BRUNGS
First Respondent

UNIVERSITY OF NEW SOUTH WALES
Second Respondent

JUDGE:	ALLSOP J
DATE:	2 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 16 April 2007 I heard a motion of the applicant for an extension of time in which to file proceedings.  I gave reasons extempore on that day.  On that day I expressed a preference for making orders in a form which neither party had sought.  In short I expressed the view on that day that I would not extend time for the filing of the application given the history of the matter.  However, I was proposing that the application for an extension of time be stood over to June to allow the applicant to make a further application to reopen her evidence on the application.  The purpose of this was to make clear to the applicant that if any extension of time were to be granted it would only be granted upon viewing an affidavit prepared in admissible form setting out the totality of the evidence that she wished to give in the matter.

2. I gave the parties an opportunity to put written submissions on this proposed course of action.  I have been assisted by those written submissions.  Ms Sharp on behalf of the respondents opposes the course of action that I proposed.  She points out in her submissions that the applicant would always be in the position of being able to bring another application and that the course that I proposed would only cause uncertainty.  The course that I proposed was designed to attempt to deal with the applicants complaints, if they be legitimately framed, and to minimise the uncertainty to the respondents, while at the same time seeking to make clear to the applicant that only the fullest production of admissible evidence would be sufficient to persuade me that an extension of time should be given bearing in mind her conduct in the application before Tamberlin J.  I have given further consideration to the matter.  I have been assisted by the careful submissions of counsel for all parties.  Whilst there was, as counsel for the applicant submitted, a degree of repetition in the respondents’ submissions, I have come to the view that I should not keep the application alive for a period of months to permit an application to reopen on a basis quite different to that which it has been approached.  On reflection, given my view that the applicant should not succeed in the application as currently framed and supported, I think the appropriate orders at this stage would be simply to dismiss the application for an extension of time with costs.

3. As I said on 16 April in my view the history of this matter is such that if the applicant wishes to succeed on an application for an extension of time the very least that should occur is that there should be a tender of the costs to which the applicant has been subjected in the Federal Court proceedings and the applicant should bring forward all the evidence upon which she will seek to rely in chief so that it is within the custody of the respondents.

4. Thus, given the submissions of the respondents I am persuaded that the orders in this application should simply be as follows:

   1.The application for an extension of time in which to file and serve an application be dismissed.

   2.The applicant pay the respondents’ costs.

5. I will also make a direction that if another application for an extension of time be brought, subject to the application of any party at the time, it be placed in my docket.

6. Taking this course will not be a substantially less advantageous result to the applicant which I proposed at the end of the hearing.  Even if I took the course that I had proposed at the hearing the applicant would pay the costs of this application to date.  The orders that I have decided upon simplify the application and the basis of and background for any further application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:       2 May 2007

Counsel for the Applicant:	Mr A Britt
Solicitor for the Applicant:	WH Parsons & Associates
Counsel for the Respondents:	Ms N Sharp
Solicitor for the Respondents:	Bartier Perry
Date of Hearing:	16 April 2006
Date of Judgment:	2 May 2006