Tuesday, 7 December 2010

Full Court: statement of principles in obtaining leave to appeal

Justice May, sitting as the Full Court of the Family Court in Manolis and Manolis has restated the principles in obtaining leave to appeal. She did so in the context of allowing a husband leave when his solicitors twice made miscalculations.

Her Honour stated:

Reference was made to Clivery & Conway [2010] FamCA 1435 and the well known principles referable to such leave applications were discussed:
  1. The principles emerging from Gallo v Dawson may be summarised as follows:
    • The grant of an extension of time is not automatic.
    • The object is to ensure that Rules which fix times do not become instruments of injustice.
    • Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
    • When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
    • When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.

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