Winn v Leigh [2016] FCA 683

Winn v Leigh [2016] FCA 683

Ms Winn failed to comply substantively with Court orders, had a history of non-compliance, and did not provide submissions addressing the merits of the decision subject to appeal. This failure constituted want of prosecution per r 35.32 of the Federal Court Rules 2011, warranting dismissal of the application for extension of time and leave to appeal. Her interlocutory application for a stay on costs and the undertaking of the respondent were also dismissed/released as consequential outcomes.

Parties
Applicant: Julene Winn; Respondent: David John Leigh
Jurisdiction
Australia
Judgment Date
07 June 2016
Procedural Posture
Appeal / Application for Extension of Time and Leave to Appeal; Dismissal for Want of Prosecution
Outcome
Application for extension of time and leave to appeal dismissed for want of prosecution; interlocutory application dismissed; undertaking released; costs to be paid by applicant.
Legal Topics
Extension of Time to Appeal, Dismissal for Want of Prosecution, Leave to Appeal, Non Compliance With Court Directions, Stay of Costs Enforcement
Practice and Procedure Insolvency Law Extension of Time to Appeal Dismissal for Want of Prosecution Leave to Appeal Non Compliance With Court Directions Stay of Costs Enforcement

Case Brief

Summary, issues, holding and outcome

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Parties

Julene Winn

Applicant

David John Leigh

Respondent

Procedural Posture

Appeal / Application for Extension of Time and Leave to Appeal; Dismissal for Want of Prosecution

Legal Issues

  1. 1 Whether the application for extension of time and leave to appeal should be dismissed for want of prosecution under r 35.32 of the Federal Court Rules 2011
  2. 2 Whether there was a failure to comply with programming directions
  3. 3 Whether the submitted documents addressed the merits of the substantive issue

Ratio Decidendi

Ms Winn failed to comply substantively with Court orders, had a history of non-compliance, and did not provide submissions addressing the merits of the decision subject to appeal. This failure constituted want of prosecution per r 35.32 of the Federal Court Rules 2011, warranting dismissal of the application for extension of time and leave to appeal. Her interlocutory application for a stay on costs and the undertaking of the respondent were also dismissed/released as consequential outcomes.

Court Disposition

Application for extension of time and leave to appeal dismissed for want of prosecution; interlocutory application dismissed; undertaking released; costs to be paid by applicant.

Orders

  • The application for extension of time and leave to appeal filed 29 April 2016 dismissed for want of prosecution pursuant to rule 35.32 of the Federal Court Rules 2011 (Cth).
  • The respondent released from his undertaking given on 13 November 2015 as set out in Order 1 of the orders of that date.