Wodrow v Commonwealth of Australia [2003] FCA 906

Wodrow v Commonwealth of Australia [2003] FCA 906

The Court was satisfied that there was an explanation for the delay and could not conclude that the applicant's prospects of success were so slight as to refuse an extension of time. Because the leave arguments were arguable but not overwhelming, and because any appeal would require consideration of the correct principles under O 37 r 10 and the status of Busby, the appropriate course was to extend time and stand over the balance of the motion for hearing by a Full Court with argument as on appeal.

Jurisdiction
Australia
Judgment Date
15 August 2003
Procedural Posture
Motion for Extension of Time to File a Notice of Motion Seeking Leave to Appeal and for Leave to Appeal / Before a Single Judge; Extension of Time Granted and Balance of Motion Stood Over for Hearing by a Full Court
Outcome
Time extended; balance of motion stood over for hearing by a Full Court.
Legal Topics
['extension of Time' 'leave to Appeal' 'stay of Execution' 'exercise of Discretion' 'federal Court Rules O 37 R 10' 'costs']
['civil Procedure' 'appellate Procedure'] ['extension of Time' 'leave to Appeal' 'stay of Execution' 'exercise of Discretion' 'federal Court Rules O 37 R 10' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Motion for Extension of Time to File a Notice of Motion Seeking Leave to Appeal and for Leave to Appeal / Before a Single Judge; Extension of Time Granted and Balance of Motion Stood Over for Hearing by a Full Court

Legal Issues

  1. 1 ['Whether time should be extended to file a notice of motion seeking leave to appeal from the judgment refusing to stay execution.' 'Whether there were sufficient prospects of success to warrant the proceeding going further.' "Whether leave to appeal should be granted in relation to the primary judge's refusal to stay execution." 'Whether the primary judge failed to give separate or adequate consideration to the combined effect of delay and serious prejudice, including evidence that the applicant arranged his affairs on the basis that a bill of costs would not be presented.' 'Whether Busby v Australian Telecommunications Commission is a sound guide to the exercise of discretion under O 37 r 10 of the Federal Court Rules in relation to a stay of execution.']

Ratio Decidendi

The Court was satisfied that there was an explanation for the delay and could not conclude that the applicant's prospects of success were so slight as to refuse an extension of time. Because the leave arguments were arguable but not overwhelming, and because any appeal would require consideration of the correct principles under O 37 r 10 and the status of Busby, the appropriate course was to extend time and stand over the balance of the motion for hearing by a Full Court with argument as on appeal.

Court Disposition

Time extended; balance of motion stood over for hearing by a Full Court.

Orders

  • ['The time within which to file a notice of motion seeking leave to appeal from the judgment of her Honour Justice Stone given on 2 May 2003 at Canberra be extended.' 'The balance of the notice of motion is stood over for hearing by a Full Court.' 'The parties should provide argument as on appeal at the hearing of...