Hall, Nancy Cloonan v Anderson, Josephine Mary Anderson & Anor [1997] FCA 654

Hall, Nancy Cloonan v Anderson, Josephine Mary Anderson & Anor [1997] FCA 654

An application under O 52 r 15(2) for leave to file and serve a notice of appeal out of time may be made to either a single judge or a Full Court as true alternatives. French J, as a single judge, exercised the appellate jurisdiction of the Court when refusing Ms Hall's extension application, and no appeal or application for leave to appeal lay to the Full Court from that refusal. The appeal was therefore incompetent. Because the respondents did not bring a timely motion under O 52 r 18, there was no basis to order that they receive costs of responding to the incompetent appeal.

Jurisdiction
Australia
Judgment Date
18 July 1997
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Refusal of an Extension of Time to Appeal / Full Court Determination of Competency of Appeal and Costs
Outcome
Appeal dismissed as not competent; no order as to costs.
Legal Topics
['extension of Time to Appeal' 'competency of Appeal' 'single Judge Appellate Jurisdiction' 'dismissal of Incompetent Appeal' 'costs of Incompetent Appeal']
['appellate Procedure' 'bankruptcy' 'costs'] ['extension of Time to Appeal' 'competency of Appeal' 'single Judge Appellate Jurisdiction' 'dismissal of Incompetent Appeal' 'costs of Incompetent Appeal']

Case Brief

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Refusal of an Extension of Time to Appeal / Full Court Determination of Competency of Appeal and Costs

Legal Issues

  1. 1 ["Whether French J erred in legal principle in refusing an extension of time within which to file and serve a notice of appeal against Carr J's judgment." "Whether an appeal lies to the Full Court from a single judge's refusal under O 52 r 15 of the Federal Court Rules to give leave to file and serve a notice of appeal out of time." 'Whether the respondents were entitled to costs where no timely motion was brought under O 52 r 18 to dismiss the appeal as incompetent.']

Ratio Decidendi

An application under O 52 r 15(2) for leave to file and serve a notice of appeal out of time may be made to either a single judge or a Full Court as true alternatives. French J, as a single judge, exercised the appellate jurisdiction of the Court when refusing Ms Hall's extension application, and no appeal or application for leave to appeal lay to the Full Court from that refusal. The appeal was therefore incompetent. Because the respondents did not bring a timely motion under O 52 r 18, there was no basis to order that they receive costs of responding to the incompetent appeal.

Court Disposition

Appeal dismissed as not competent; no order as to costs.

Orders

  • ['The appeal be dismissed as not competent.' 'There be no order as to costs.']