Nyoni v Chee Koon Hee [2013] FCA 1120

Nyoni v Chee Koon Hee [2013] FCA 1120

Gilmour J's judgment was interlocutory, so Mr Nyoni required leave to appeal and the notice of appeal filed without leave was incompetent. Because Mr Nyoni had paid a filing fee, the Court treated the notice of appeal as an application for leave to appeal, but that application was filed outside the 14-day period required by r 35.13, making it necessary for Mr Nyoni to apply for an extension of time.

Jurisdiction
Australia
Judgment Date
23 October 2013
Procedural Posture
Application for Leave to Appeal Treated From Notice of Appeal / Callover List for Appeal Sittings; Competency Objection to Appeal
Outcome
The notice of appeal was treated as an application for leave to appeal and the application was to be allocated to a docket judge.
Legal Topics
['leave to Appeal From Interlocutory Judgment' 'competency of Appeal' 'extension of Time' 'summary Dismissal']
['civil Procedure' 'appellate Procedure'] ['leave to Appeal From Interlocutory Judgment' 'competency of Appeal' 'extension of Time' 'summary Dismissal']

Case Brief

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Procedural Posture

Application for Leave to Appeal Treated From Notice of Appeal / Callover List for Appeal Sittings; Competency Objection to Appeal

Legal Issues

  1. 1 ['Whether the decision of Gilmour J dismissing the claims pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) was interlocutory.' 'Whether Mr Nyoni required leave to appeal and whether the notice of appeal was incompetent because leave had not been obtained.' 'Whether the notice of appeal should be treated as an application for leave to appeal.' 'Whether an extension of time was required because the application for leave to appeal was filed outside the time required by r 35.13 of the Federal Court Rules 2011.']

Ratio Decidendi

Gilmour J's judgment was interlocutory, so Mr Nyoni required leave to appeal and the notice of appeal filed without leave was incompetent. Because Mr Nyoni had paid a filing fee, the Court treated the notice of appeal as an application for leave to appeal, but that application was filed outside the 14-day period required by r 35.13, making it necessary for Mr Nyoni to apply for an extension of time.

Court Disposition

The notice of appeal was treated as an application for leave to appeal and the application was to be allocated to a docket judge.

Orders

  • ['The notice of appeal be treated as an application for leave to appeal.' 'The application for leave to appeal is to be allocated to a docket judge.']