Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326

Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326

The motion was dismissed because there was no applicable rule permitting reopening of the entered appellate orders, and it was not appropriate to use s 23 or inherent power to fill that gap. In any event, even if jurisdiction existed, Mr Dunstan had not established a proper basis to set aside the orders: the proposed fresh evidence case was unsupported and delayed, the custody difficulties had long been apparent, the revised notice of appeal remained defective, and continuing the appeal would oppress the respondents and burden the Court.

Jurisdiction
Australia
Judgment Date
30 August 2007
Procedural Posture
Appeal; Motion to Set Aside Entered Order Striking Out Appeal / Notice of Motion Filed 12 March 2007 After Orders Made on 9 February 2007 Were Entered on 23 February 2007
Outcome
Motion dismissed with costs.
Legal Topics
['setting Aside Entered Orders' 'appellate Jurisdiction' 'strike Out of Notice of Appeal' 'reopening Final Orders' 'self Represented Litigants' 'costs']
['appellate Procedure' 'civil Procedure'] ['setting Aside Entered Orders' 'appellate Jurisdiction' 'strike Out of Notice of Appeal' 'reopening Final Orders' 'self Represented Litigants' 'costs']

Case Brief

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Procedural Posture

Appeal; Motion to Set Aside Entered Order Striking Out Appeal / Notice of Motion Filed 12 March 2007 After Orders Made on 9 February 2007 Were Entered on 23 February 2007

Legal Issues

  1. 1 ["Whether a single judge had power to hear a motion to set aside an entered order made in the exercise of the Court's appellate jurisdiction." 'Whether the Federal Court had jurisdiction to reopen or set aside an entered appellate order in the absence of an applicable rule.' 'Whether, if jurisdiction existed, the orders striking out the amended notice of appeal and dismissing the proceedings should be set aside on the facts.']

Ratio Decidendi

The motion was dismissed because there was no applicable rule permitting reopening of the entered appellate orders, and it was not appropriate to use s 23 or inherent power to fill that gap. In any event, even if jurisdiction existed, Mr Dunstan had not established a proper basis to set aside the orders: the proposed fresh evidence case was unsupported and delayed, the custody difficulties had long been apparent, the revised notice of appeal remained defective, and continuing the appeal would oppress the respondents and burden the Court.

Court Disposition

Motion dismissed with costs.

Orders

  • ["The applicant/appellant's motion filed on 12 March 2007 be dismissed." "The applicant/appellant pay the respondents' costs of the motion."]