PRACTICE – appeal – extension of time to file application for leave to appeal and notice of appeal refused – no prospects of success.
FEDERAL JURISDICTION – s 79 of the Judiciary Act1903 (Cth picks up s 57 of the Legal Aid Commission Act 1979 (NSW) – operation of s 79 of the Judiciary Act.
PAUL WILSON v CHARLES ALEXANDER & ORS (IN PARTNERSHIP AS MINTER ELLISON ) N 654 of 2003
RYAN, HEEREY & ALLSOP J 26 NOVEMBER 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 654 of 2003
ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA
BETWEEN:
PAUL WILSON APPLICANT
AND:
CHARLES ALEXANDER & ORS (IN PARTNERSHIP AS MINTER ELLISON) RESPONDENT
JUDGES:
RYAN, HEEREY & ALLSOP JJ
DATE OF ORDER:
26 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The applications to extend time for the filing of an application for leave to appeal in respect of orders of the primary judge on 11 March 2003 and of a notice of appeal in respect of orders of the primary judge on 12 March 2003 be dismissed.
The applicant pay the costs of the respondents.
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
N 654 of 2003
ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA
BETWEEN:
PAUL WILSON APPLICANT
AND:
CHARLES ALEXANDER & ORS (IN PARTNERSHIP AS MINTER ELLISON) RESPONDENT
JUDGES:
RYAN, HEEREY & ALLSOP JJ
DATE:
26 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT
There is before the Court an application for an extension of time to file and serve a notice of appeal dated and filed 5 June 2003 against orders of the primary judge made on 12 March 2003 dismissing the applicant’s application, ordering him to pay the respondents’ costs and providing for the return of exhibits within 28 days unless an appeal was filed: Wilson v Alexander [2003]…
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
AGLC
Wilson v Alexander [2003] FCAFC 272
Case
[2003] FCAFC 272
Decision Date
CaseChat Overview and Summary
The matter before the court involved Wilson, the applicant, and Alexander, the respondent. The dispute arose from orders made by the primary judge on 11 and 12 March 2003, which Wilson sought to challenge. Wilson applied for an extension of time to file an application for leave to appeal these orders and to file a notice of appeal. Alexander opposed the applications, arguing that there was no valid reason for the delay and that the applications should be dismissed.
The central legal issues before the court were whether Wilson had a valid reason for the delay in filing the application for leave to appeal and the notice of appeal, and whether the applications should be granted despite the late filing. The court had to consider the principles governing the extension of time for such applications, including the need for a satisfactory explanation for the delay and whether the delay had caused any prejudice to the respondent.
The court found that Wilson had not provided a satisfactory explanation for the delay in filing the applications. The explanations provided were deemed inadequate and not sufficient to justify the extension of time. The court further found that the delay had caused prejudice to Alexander, as it had disrupted the respondent's ability to prepare for the appeal. Based on these findings, the court dismissed the applications to extend time and ordered Wilson to pay the costs of the respondents.
Orders
Orders of the court
1. The applications to extend time for the filing of an application for leave to appeal in respect of orders of the primary judge on 11 March 2003 and of a notice of appeal in respect of orders of the primary judge on 12 March 2003 be dismissed.
2. The applicant pay the costs of the respondents.