Wu v Avin Operations Pty Ltd [2007] FCA 882

Wu v Avin Operations Pty Ltd [2007] FCA 882

Even if the proceeding was treated as interlocutory, the notice of appeal and application for extension of time were unnecessary and should not have been instituted separately, because Mr Armitage should have sought relief in the substantive proceeding under O 35 r 7. The unnecessary application imposed an unwarranted burden on Ms Wu, and the interests of justice warranted allowing her costs of the 18 May 2006 hearing to be taxed before the conclusion of the principal proceeding and paid forthwith, unless those costs were already comprehended by the consent orders made on 26 February 2007.

Jurisdiction
Australia
Judgment Date
14 June 2007
Procedural Posture
Application for Extension of Time in Which to Seek Leave to Appeal and Costs Determination / Reasons for Judgment on Costs After Dismissal of the Application for Extension of Time
Outcome
Ms Wu was awarded her costs of and incidental to the hearing of 18 May 2006, unless those costs were comprehended by the consent order made on 26 February 2007 in proceeding (P) VID 372 of 2003; the costs were to be taxed before conclusion of the principal proceeding in default of agreement and paid forthwith upon...
Legal Topics
['extension of Time to Seek Leave to Appeal' 'leave to Appeal From Interlocutory Orders' 'costs of Interlocutory Proceedings' 'taxation and Payment of Costs Forthwith' 'federal Court Rules']
['civil Procedure' 'appellate Procedure' 'costs'] ['extension of Time to Seek Leave to Appeal' 'leave to Appeal From Interlocutory Orders' 'costs of Interlocutory Proceedings' 'taxation and Payment of Costs Forthwith' 'federal Court Rules']

Case Brief

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Procedural Posture

Application for Extension of Time in Which to Seek Leave to Appeal and Costs Determination / Reasons for Judgment on Costs After Dismissal of the Application for Extension of Time

Legal Issues

  1. 1 ["Whether Ms Wu's costs of the hearing on 18 May 2006 should be payable forthwith or deferred until after conclusion of the substantive proceeding." 'Whether the proceeding should be treated as interlocutory for the purposes of O 62 r 3(3) of the Federal Court Rules.' 'Whether the circumstances warranted departure from the general practice that costs of an interlocutory proceeding are not taxed until the principal proceeding is concluded.']

Ratio Decidendi

Even if the proceeding was treated as interlocutory, the notice of appeal and application for extension of time were unnecessary and should not have been instituted separately, because Mr Armitage should have sought relief in the substantive proceeding under O 35 r 7. The unnecessary application imposed an unwarranted burden on Ms Wu, and the interests of justice warranted allowing her costs of the 18 May 2006 hearing to be taxed before the conclusion of the principal proceeding and paid forthwith, unless those costs were already comprehended by the consent orders made on 26 February 2007.

Court Disposition

Ms Wu was awarded her costs of and incidental to the hearing of 18 May 2006, unless those costs were comprehended by the consent order made on 26 February 2007 in proceeding (P) VID 372 of 2003; the costs were to be taxed before conclusion of the principal proceeding in default of agreement and paid forthwith upon...

Orders

  • ['Unless the costs of the applicant, Jun Xue Wu, of and incidental to the hearing of 18 May 2006, have been comprehended by the consent order made on 26 February 2007 in proceedings numbered (P) VID 372 of 2003, the said costs, in default of agreement be taxed before the conclusion of the principal proceeding and...