Toeben v Jones

[2009] FCA 585

FEDERAL COURT OF AUSTRALIA

Töben v Jones [2009] FCA 585

PRACTICE AND PROCEDURE – application for extension of time within which to file and serve notice of appeal from order declaring applicant guilty of contempt of court – where all relevant factors other than merits of proposed appeal in favour of granting extension of time – whether applicant able to demonstrate prospect of success

Held: extension of time granted – without hearing submissions as on appeal, Court unable to conclude that proposed appeal has no prospect of success.    

Racial Discrimination Act 1975 (Cth)
Federal Court Rules O 52 r 15

Jeffers v The Queen (1993) 67 ALJR 288 cited
Jess v Scott (1986) 12 FCR 187 referred to
Jones v Toben [2002] FCA 1150 referred to
Jones v Toben [2009] FCA 354 referred to
Jones v Toben (No 2) [2009] FCA 477 referred to
Parker v The Queen [2002] FCAFC 133 referred to
Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 referred to

GERALD FREDRICK TÖBEN v JEREMY JONES

SAD 69 of 2009

BESANKO J
2 JUNE 2009
ADELAIDE (VIA VIDEO LINK WITH SYDNEY AND MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 69 of 2009

BETWEEN: GERALD FREDRICK TÖBEN
Applicant

AND: JEREMY JONES
Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	2 JUNE 2009
WHERE MADE:	ADELAIDE (VIA VIDEO LINK WITH SYDNEY AND MELBOURNE)

THE COURT ORDERS THAT:

The time within which the applicant may file and serve a notice of appeal appealing against the declaration made by Lander J on 16 April 2009 (order number 7) and containing the 25 grounds of appeal identified in exhibit “GFT-B” to the applicant’s affidavit sworn on 20 May 2009 be extended to 9 June 2009.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 69 of 2009

BETWEEN: GERALD FREDRICK TÖBEN
Applicant

AND: JEREMY JONES
Respondent

JUDGE:	BESANKO J
DATE:	2 JUNE 2009
PLACE:	ADELAIDE (VIA VIDEO LINK WITH SYDNEY AND MELBOURNE)

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to file and serve a notice of appeal from an order made by a judge of this Court on 16 April 2009. This Court’s power to extend time is contained in O 52 r 15(2) of the Federal Court Rules. For the reasons which follow, I will make the order sought by the applicant.

2. The respondent brought a notice of motion seeking the punishment of the applicant for contempt of court, in disobeying orders of this Court and failing to honour undertakings given to the Court. The notice of motion was heard by a judge of this Court (“the primary judge”), who made a number of orders on 16 April 2009. The application for an extension of time within which to file and serve a notice…