Swinbank v Elders Ltd [2002] FCAFC 270

Swinbank v Elders Ltd [2002] FCAFC 270

Leave was granted only to discontinue the application for leave to appeal because the extant High Court and Federal Court orders did not prevent discontinuance of that application, which would leave the orders below undisturbed. The Court declined to treat the notice as discontinuing the original proceeding because there was an extant judgment and the proper course for any issue about the proceeding itself was for the docket judge.

Jurisdiction
Australia
Judgment Date
28 August 2002
Procedural Posture
Application for Leave to Appeal / Application for Leave to Discontinue the Application for Leave to Appeal After Judgment Was Reserved
Outcome
Application for leave to discontinue the application for leave to appeal granted; no order as to costs.
Legal Topics
['discontinuance of Appeal Proceedings' 'application for Leave to Appeal' 'separate Question' 'insurance Indemnity' 'jurisdiction Under S 39 B(1 A)(c) of the Judiciary Act 1983 (cth)' 'insurance Contracts Act 1984 (cth)']
['practice and Procedure' 'insurance' 'federal Jurisdiction'] ['discontinuance of Appeal Proceedings' 'application for Leave to Appeal' 'separate Question' 'insurance Indemnity' 'jurisdiction Under S 39 B(1 A)(c) of the Judiciary Act 1983 (cth)' 'insurance Contracts Act 1984 (cth)']

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Procedural Posture

Application for Leave to Appeal / Application for Leave to Discontinue the Application for Leave to Appeal After Judgment Was Reserved

Legal Issues

  1. 1 ['Whether leave should be granted to file a notice of discontinuance in relation to the application for leave to appeal where judgment stood reserved.' 'Whether the proposed notice of discontinuance ambiguously sought to discontinue the original proceeding rather than only the application for leave to appeal.' 'Whether the original proceeding itself could be discontinued in light of extant orders and an extant judgment.']

Ratio Decidendi

Leave was granted only to discontinue the application for leave to appeal because the extant High Court and Federal Court orders did not prevent discontinuance of that application, which would leave the orders below undisturbed. The Court declined to treat the notice as discontinuing the original proceeding because there was an extant judgment and the proper course for any issue about the proceeding itself was for the docket judge.

Court Disposition

Application for leave to discontinue the application for leave to appeal granted; no order as to costs.

Orders

  • ['The applicants for leave to appeal be granted leave to file a notice of discontinuance of the application.' 'No order for costs will be made.']