Wodrow v Commonwealth of Australia

[2003] FCA 906

FEDERAL COURT OF AUSTRALIA

Wodrow v Commonwealth of Australia [2003] FCA 906

WILLIAM WODROW v COMMONWEALTH OF AUSTRALIA
AG 6 OF 1992

GYLES J
15 AUGUST 2003
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY  DISTRICT REGISTRY	AG 6 OF 1992

BETWEEN:	WILLIAM WODROW APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	15 AUGUST 2003
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The time within which to file a notice of motion seeking leave to appeal from the judgment of her Honour Justice Stone given on 2 May 2003 at Canberra be extended.

2.The balance of the notice of motion is stood over for hearing by a Full Court.

3.The parties should provide argument as on appeal at the hearing of the motion.

4.Costs to date are to be costs in the motion.

5.An appointment be made to settle papers for the hearing of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY  DISTRICT REGISTRY	AG 6 OF 1992

BETWEEN:	WILLIAM WODROW APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	GYLES J
DATE:	15 AUGUST 2003
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. This is a motion, firstly, for extension of time within which to file a notice of motion for leave to appeal and, secondly, for leave to appeal from a judgment given on 2 May 2003, refusing to stay execution upon a judgment (Wodrow v Commonwealth of Australia [2003] FCA 403). So far as the first application is concerned, I am satisfied that there is an explanation for the delay. The question remains whether or not there are sufficient prospects of success to warrant the proceeding going on any further. That is, of course, linked with the second issue as to whether or not leave to appeal ought be granted.

2. The respondent has, naturally, relied upon the well-known authorities stressing the difficulties of appealing against an exercise of discretion by a trial judge, particularly in circumstances where, if not technically a matter of practice of procedure, it is very close to being a matter of practice and procedure.  Those authorities are accepted, in essence, by counsel for the applicant and, as the argument has developed, the issue is quite narrow and confined.  It is that the primary judge set out to give effect to principles applied by French J in Busby v Australian Telecommunications Commission (unreported, 25 February 1992), where his Honour applied principles enunciated in the English courts in relation to want of prosecution generally to the question arising under O 37 r 10 of the Federal Court Rules.  In particular, the applicant relies on the statement in that judgment to the effect that the Court has power to order a stay of proceedings where there has been delay which gives rise to serious prejudice to an innocent party.  As I read the primary judge’s decision, her Honour set out to consider that…