Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155

Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155

The appeal was incompetent because the purported notice of appeal was served out of time under O 52 r 15 and the appellant had not sought an extension of time or filed the required supporting affidavit. Independently, the purported notice of appeal was profoundly defective because its stated grounds were not brief, specific, or true grounds of appeal and included irrelevant, scandalous, and otherwise defective material. The notice therefore had to be struck out and the appeal dismissed as incompetent, while preserving any right to seek leave to file and serve out of time a properly formulated notice of appeal.

Jurisdiction
Australia
Judgment Date
21 July 2003
Procedural Posture
Appeal From a Judge of the Federal Court of Australia; Respondent's Motion on Notice to Dismiss Appeal as Incompetent / Full Court Determination of Competency of Purported Notice of Appeal
Outcome
Purported notice of appeal struck out and appeal dismissed as incompetent; orders made without prejudice to any application for leave to file and serve out of time a properly formulated notice of appeal.
Legal Topics
['competency of Appeal' 'notice of Appeal' 'extension of Time' 'service Out of Time' 'defective Grounds of Appeal' 'costs']
['civil Procedure' 'appeals' 'trade Practices'] ['competency of Appeal' 'notice of Appeal' 'extension of Time' 'service Out of Time' 'defective Grounds of Appeal' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From a Judge of the Federal Court of Australia; Respondent's Motion on Notice to Dismiss Appeal as Incompetent / Full Court Determination of Competency of Purported Notice of Appeal

Legal Issues

  1. 1 ['Whether the appeal embodied in the purported notice of appeal filed on 29 May 2003 should be dismissed as incompetent because service was out of time and no extension of time had been sought.' 'Whether the purported notice of appeal should be struck out because it failed to comply with the requirements for a notice of appeal, including stating brief and specific grounds and the judgment sought.' "Whether any orders should be made without prejudice to the appellant's right to seek leave to file and serve out of time a properly formulated notice of appeal."]

Ratio Decidendi

The appeal was incompetent because the purported notice of appeal was served out of time under O 52 r 15 and the appellant had not sought an extension of time or filed the required supporting affidavit. Independently, the purported notice of appeal was profoundly defective because its stated grounds were not brief, specific, or true grounds of appeal and included irrelevant, scandalous, and otherwise defective material. The notice therefore had to be struck out and the appeal dismissed as incompetent, while preserving any right to seek leave to file and serve out of time a properly formulated notice of appeal.

Court Disposition

Purported notice of appeal struck out and appeal dismissed as incompetent; orders made without prejudice to any application for leave to file and serve out of time a properly formulated notice of appeal.

Orders

  • ['The purported notice of appeal filed 29 May 2003 be struck out.' 'The appeal embodied in the said purported notice be dismissed as incompetent.' 'The orders in paragraph 1 and 2 hereof are made without prejudice to the right of the appellant to apply for leave to file and serve out of time a properly formulated...