Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268

Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268

The applications were refused because the applicant gave no satisfactory explanation for the delay and the proposed appeals had no real prospect of success. The Federal Circuit Court was correct that the respondent's determinations were contractual decisions, not decisions made under an enactment reviewable under the ADJR Act, and it did not err in following Mickovski. The proposed challenges to the costs orders and the identification of the respondent also disclosed no appealable error. The judgments and orders were not attended with sufficient doubt and refusal of leave would not cause substantial injustice.

Jurisdiction
Australia
Judgment Date
29 November 2013
Procedural Posture
Applications for Extensions of Time to Apply for Leave to Appeal From Two Federal Circuit Court of Australia Decisions / Heard on the Papers
Outcome
Applications refused; applicant to pay the respondent's costs of each application.
Legal Topics
['extension of Time' 'leave to Appeal' 'administrative Decisions (judicial Review) Act 1977 (cth)' 'decision Made Under an Enactment' 'contractual Dispute Resolution Determinations' 'summary Dismissal' 'costs Orders']
['administrative Law' 'civil Procedure' 'judicial Review' 'costs'] ['extension of Time' 'leave to Appeal' 'administrative Decisions (judicial Review) Act 1977 (cth)' 'decision Made Under an Enactment' 'contractual Dispute Resolution Determinations' 'summary Dismissal' 'costs Orders']

Case Brief

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Procedural Posture

Applications for Extensions of Time to Apply for Leave to Appeal From Two Federal Circuit Court of Australia Decisions / Heard on the Papers

Legal Issues

  1. 1 ['Whether extensions of time should be granted to seek leave to appeal from the Federal Circuit Court orders made on 31 May 2013 and costs orders made on 2 July 2013.' "Whether the respondent's determinations were decisions of an administrative character made under an enactment and reviewable under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)." 'Whether the Federal Circuit Court erred in following Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185 rather than treating the determinations as judicially reviewable on another basis by reference to Datafin or Masu.' 'Whether the Federal Circuit Court erred in making separate costs orders in the two applications.' "Whether the applicant's contention that FICS rather than the respondent should have been named disclosed any appealable error."]

Ratio Decidendi

The applications were refused because the applicant gave no satisfactory explanation for the delay and the proposed appeals had no real prospect of success. The Federal Circuit Court was correct that the respondent's determinations were contractual decisions, not decisions made under an enactment reviewable under the ADJR Act, and it did not err in following Mickovski. The proposed challenges to the costs orders and the identification of the respondent also disclosed no appealable error. The judgments and orders were not attended with sufficient doubt and refusal of leave would not cause substantial injustice.

Court Disposition

Applications refused; applicant to pay the respondent's costs of each application.

Orders

  • ['The application is refused.' 'The applicant pay to the respondent its costs of the application.']