Chen v Birbilis [2023] FCA 1644

Chen v Birbilis [2023] FCA 1644

The applicant failed to provide a satisfactory explanation for the long delay in seeking leave to appeal, and the proposed grounds of appeal are not sufficiently arguable to warrant the exercise of discretion to grant an extension of time or leave. Finality, lack of merit, prejudice to respondents, and absence of substantial injustice all support dismissal of the application.

Parties
Applicant: Qizhi Chen; First Respondent: Nick Birbilis; Second Respondent: Edwina Cornish; Third Respondent: Monash University
Jurisdiction
Australia
Judgment Date
20 December 2023
Procedural Posture
Application for Extension of Time to Seek Leave to Appeal / Determined on the Papers; Judgment and Orders
Outcome
Application for extension of time to seek leave to appeal dismissed; costs ordered against applicant.
Legal Topics
Extension of Time, Leave to Appeal, Summary Dismissal, Jurisdiction, Sex Discrimination
Employment and Industrial Relations Practice and Procedure Extension of Time Leave to Appeal Summary Dismissal Jurisdiction Sex Discrimination

Case Brief

Summary, issues, holding and outcome

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Parties

Qizhi Chen

Applicant

Nick Birbilis

First Respondent

Edwina Cornish

Second Respondent

Monash University

Third Respondent

Procedural Posture

Application for Extension of Time to Seek Leave to Appeal / Determined on the Papers; Judgment and Orders

Legal Issues

  1. 1 Whether the applicant should be granted an extension of time to seek leave to appeal over six years after the primary judgment
  2. 2 Whether the primary judge made an error of law in determining the Federal Court had no jurisdiction to hear the victimisation claim under the Sex Discrimination Act 1984 (Cth)
  3. 3 Whether refusal would result in a substantial injustice

Ratio Decidendi

The applicant failed to provide a satisfactory explanation for the long delay in seeking leave to appeal, and the proposed grounds of appeal are not sufficiently arguable to warrant the exercise of discretion to grant an extension of time or leave. Finality, lack of merit, prejudice to respondents, and absence of substantial injustice all support dismissal of the application.

Court Disposition

Application for extension of time to seek leave to appeal dismissed; costs ordered against applicant.

Orders

  • The application for an extension of time to seek leave to appeal be dismissed.
  • The applicant pay the respondents' costs of the application.