Sereika v Cardinal Financial Securities Ltd [2002] FCAFC 179

Sereika v Cardinal Financial Securities Ltd [2002] FCAFC 179

Although the applicant's solicitors had been in gross and cavalier default by failing to file proper and timely applications for leave to appeal and by failing to prepare the appeals in accordance with directions, the Court extended time because refusing the extension would risk extinguishing Trade Practices Act 1974 (Cth) claims and affecting class members. The default nevertheless required the applicant's solicitor to pay respondents' costs of the extension applications on an indemnity basis, with further hearing adjourned and stayed until those costs were paid.

Jurisdiction
Australia
Judgment Date
17 May 2002
Procedural Posture
Applications for Extension of Time to File Applications for Leave to Appeal in Two Related Matters / Full Court Hearing; Applications for Leave to Appeal Adjourned and Stayed
Outcome
Time to file applications for leave to appeal was extended; applications for leave to appeal were adjourned and stayed pending payment of indemnity costs by the applicant's solicitor.
Legal Topics
['extension of Time' 'leave to Appeal' 'indemnity Costs' "solicitors' Default" 'stay of Proceedings']
['civil Procedure' 'appellate Procedure' 'costs'] ['extension of Time' 'leave to Appeal' 'indemnity Costs' "solicitors' Default" 'stay of Proceedings']

Case Brief

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Procedural Posture

Applications for Extension of Time to File Applications for Leave to Appeal in Two Related Matters / Full Court Hearing; Applications for Leave to Appeal Adjourned and Stayed

Legal Issues

  1. 1 ['Whether time should be extended for filing applications for leave to appeal from orders of Tamberlin J made on 7 December 2001' "Whether the applicant's solicitor should pay respondents' costs caused by the default on an indemnity basis" 'Whether further hearing should be stayed until those costs are paid' 'Whether payment of previously taxed costs should be imposed as a term of adjournment']

Ratio Decidendi

Although the applicant's solicitors had been in gross and cavalier default by failing to file proper and timely applications for leave to appeal and by failing to prepare the appeals in accordance with directions, the Court extended time because refusing the extension would risk extinguishing Trade Practices Act 1974 (Cth) claims and affecting class members. The default nevertheless required the applicant's solicitor to pay respondents' costs of the extension applications on an indemnity basis, with further hearing adjourned and stayed until those costs were paid.

Court Disposition

Time to file applications for leave to appeal was extended; applications for leave to appeal were adjourned and stayed pending payment of indemnity costs by the applicant's solicitor.

Orders

  • ['The time for filing an application for leave to appeal from the orders of Tamberlin J made on 7 December 2001 be extended until today.' "The applicant's solicitor pay the costs of the respondents of and incidental to the application for an enlargement of time for filing the application for leave to appeal, such...