Wade v AMI Australia Holdings Pty Ltd - [2010] FCAFC 120

FEDERAL COURT OF AUSTRALIA
Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120

Citation: Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120

Appeal from: AMI Australia Holdings Pty Ltd (ACN 095 238 645) v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) [2009] FCA 1437

Parties: DAVID JOHN WADE, GEORGINA WADE, BADE MEDICAL INSTITUTE (AUST) PTY LTD and WORLD WIDE INTERNET SERVICES (AUST) PTY LTD v AMI AUSTRALIA HOLDINGS PTY LTD, ADVANCED MEDICAL INSTITUTE PTY LTD and DR BUDDY PAUL BEAINI

File number: NSD 59 of 2010

Judge: COWDROY J

Date of judgment: 24 September 2010

Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(ba)
Federal Court Rules O 52 r 38(1)(a)

Cases cited: AMI Australia Holdings Pty Ltd (ACN 095 238 645) and Another v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) (2009) 84 IPR 19

Date of hearing: 17 September 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 39

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 59 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
DAVID JOHN WADE
First Appellant

GEORGINA WADE
Second Appellant

BADE MEDICAL INSTITUTE (AUST) PTY LTD
Third Appellant

WORLD WIDE INTERNET SERVICES (AUST) PTY LTD
Fourth Appellant

AND:
AMI AUSTRALIA HOLDINGS PTY LTD
First Respondent

ADVANCED MEDICAL INSTITUTE PTY LTD
Second Respondent

DR BUDDY PAUL BEAINI
Third Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

17 SEPTEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.In the exercise of the power of the Court under s 25(2B)(ba) of the Federal Court Act 1976 (Cth), the Appeal is dismissed for want of prosecution pursuant to O 52 r 38(1)(a) of the Federal Court Rules (Cth).

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 59 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
DAVID JOHN WADE
First Appellant

GEORGINA WADE
Second Appellant

BADE MEDICAL INSTITUTE (AUST) PTY LTD
Third Appellant

WORLD WIDE INTERNET SERVICES (AUST) PTY LTD
Fourth Appellant

AND:
AMI AUSTRALIA HOLDINGS PTY LTD
First Respondent

ADVANCED MEDICAL INSTITUTE PTY LTD
Second Respondent

DR BUDDY PAUL BEAINI
Third Respondent

JUDGE:

COWDROY J

DATE:

24 SEPTEMBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT
COWDROY J:

On 27 January 2010 an appeal was filed by the appellants, David John Wade (‘Mr Wade’), Georgina Wade (‘Mrs Wade’), Bade Medical Institute (Aust.) Pty Limited (‘Bade’) and World Wide Internet Services (Aust.) Pty Limited (‘World Wide Internet’) from the judgment delivered on 4 December 2009 in AMI Australia Holdings Pty Ltd (ACN 095 238 645) and Another v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) (2009) 84 IPR 19.
The Notice of Appeal nominates AMI Australia Holdings Pty Limited (‘AMI’),…

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.

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Details

Case: [2010] FCAFC 120
Decision Date: 24 September 2010

CaseChat Overview and Summary

The parties involved in this case are Wade, the appellant, and AMI Australia Holdings Pty Ltd, the respondent. The dispute revolves around an appeal against a decision made by the Federal Circuit Court of Australia. The appellant, Wade, was seeking to appeal a decision made by the Federal Circuit Court, which dismissed his case. The Federal Court of Australia was tasked with hearing the appeal. The central legal issue before the Federal Court was whether the appeal should proceed or be dismissed due to the appellant's failure to prosecute the appeal diligently. Specifically, the court had to determine if the delay in filing the necessary documents for the appeal constituted a sufficient ground for dismissing the appeal under the relevant provisions of the Federal Court Rules.

The court considered the relevant provisions of the Federal Court Act and the Federal Court Rules, particularly sections 25(2B)(ba) and rules 38(1)(a). The court noted that the appellant had failed to take steps to ensure the appeal was prosecuted within the time limits prescribed by the rules. The delay in filing the necessary documents and the appellant's lack of a satisfactory explanation for this delay were critical factors in the court's decision. The court held that the appellant's conduct amounted to a want of prosecution, warranting the dismissal of the appeal. The court emphasised that timely prosecution of an appeal is essential to ensure the efficient administration of justice and that parties must adhere to procedural requirements.

The court dismissed the appeal, finding that the appellant had not demonstrated sufficient diligence in prosecuting the appeal. The court concluded that the appellant's failure to comply with the procedural rules and timelines justified the dismissal of the appeal for want of prosecution. The court's decision was in line with the statutory and rule-based provisions governing the prosecution of appeals in the Federal Court of Australia.

Orders

Orders of the court

1. In the exercise of the power of the Court under s 25(2B)(ba) of the Federal Court Act 1976 (Cth), the Appeal is dismissed for want of prosecution pursuant to O 52 r 38(1)(a) of the Federal Court Rules (Cth).

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120
Appeal from:		AMI Australia Holdings Pty Ltd (ACN 095 238 645) v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) [2009] FCA 1437
Parties:		DAVID JOHN WADE, GEORGINA WADE, BADE MEDICAL INSTITUTE (AUST) PTY LTD and WORLD WIDE INTERNET SERVICES (AUST) PTY LTD v AMI AUSTRALIA HOLDINGS PTY LTD, ADVANCED MEDICAL INSTITUTE PTY LTD and DR BUDDY PAUL BEAINI
File number:		NSD 59 of 2010
Judge:		COWDROY J
Date of judgment:		24 September 2010
Legislation:		Federal Court of Australia Act 1976 (Cth) s 25(2B)(ba) Federal Court Rules O 52 r 38(1)(a)
Cases cited:		AMI Australia Holdings Pty Ltd (ACN 095 238 645) and Another v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) (2009) 84 IPR 19
Date of hearing:	17 September 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	39

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 59 of 2010

JUDGE:	COWDROY J
DATE OF ORDER:	17 SEPTEMBER 2010
WHERE MADE:	SYDNEY

JUDGE:	COWDROY J
DATE:	24 SEPTEMBER 2010
PLACE:	SYDNEY