R.D. Werner & Co. Inc. v Bailey Aluminium Products Pty Ltd [1988] FCA 208

R.D. Werner & Co. Inc. v Bailey Aluminium Products Pty Ltd [1988] FCA 208

The Full Court held that while the consent order reflected a binding contract resolving the application for security for costs, it did not oust the Court’s discretionary power under the rules to extend time for compliance, even after the time had expired and the appeal had, by virtue of a self-executing order, been dismissed. There were special circumstances justifying the extension, and the order for security for costs could validly be varied to extend time.

Jurisdiction
Australia
Judgment Date
02 May 1988
Procedural Posture
Appeal / Interlocutory Appeal (by Leave) From a Single Judge to Full Court
Outcome
Appeal allowed
Legal Topics
['security for Costs' 'self Executing Orders' 'extension of Time' 'interlocutory Orders' 'consent Orders' "court's Discretionary Powers"]
['practice and Procedure' 'patents Law'] ['security for Costs' 'self Executing Orders' 'extension of Time' 'interlocutory Orders' 'consent Orders' "court's Discretionary Powers"]

Case Brief

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Procedural Posture

Appeal / Interlocutory Appeal (by Leave) From a Single Judge to Full Court

Legal Issues

  1. 1 ['Whether a consent order for security for costs is a binding contract excluding the court’s power to vary the order' 'Whether the court may extend time after a self-executing dismissal for non-compliance' 'Effect of relevant rules of court on variation of interlocutory orders after dismissal']

Ratio Decidendi

The Full Court held that while the consent order reflected a binding contract resolving the application for security for costs, it did not oust the Court’s discretionary power under the rules to extend time for compliance, even after the time had expired and the appeal had, by virtue of a self-executing order, been dismissed. There were special circumstances justifying the extension, and the order for security for costs could validly be varied to extend time.

Court Disposition

Appeal allowed

Orders

  • ['The order made on 4 November 1987 in the appeal numbered VG 147 of 1987 be set aside.' 'Time for providing security for costs under the order of 24 July 1987 be extended until 20 May 1988.' 'The appeal numbered VG 147 of 1987 to stand as a pending appeal accordingly.' 'Respondent to pay appellant’s costs of the...