FEDERAL COURT OF AUSTRALIA

APPEAL - Application for extension of time in which to appeal - application lodged fifteen months after expiry of time for lodging appeal - whether trial judge erred in legal principle - whether appeal lies from single judge exercising power under O 52 r 15 of the Federal Court Rules - appeal dismissed as incompetent

COSTS - Application of O 52 r 18 - no timely motion for order dismissing the appeal as incompetent - respondent not entitled to costs of responding to incompetent appeal - no order as to costs

Federal Court Rules O 52 rr 15, 18

Federal Court of Australia Act 1976 (Cth) s 25(2)

NANCY CLOONAN HALL v JOSEPHINE MARY ANDERSON ANDERSON & ANOR

No WAG 49 of 1997

SPENDER, FINN AND NORTH JJ

PERTH

18 JULY 1997

GENERAL DISTRIBUTION

            On appeal from a single Judge of the Federal Court of Australia

JUDGES:       SPENDER, FINN and NORTH JJ

PLACE:          PERTH

DATE:            18 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.           The appeal be dismissed as not competent.

2.           There be no order as to costs.

Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

            On appeal from a single Judge of the Federal Court of Australia

JUDGES:       SPENDER, FINN and NORTH JJ

PLACE:          PERTH

DATE:            18 JULY 1997

REASONS FOR JUDGMENT

THE COURT:

On 24 April 1997, Nancy Cloonan Hall (the appellant) filed a document styled “Notice of Appeal” seeking to appeal the dismissal by a single judge of this Court (French J) of an application by Ms Hall for an extension of time within which to file and serve a notice of appeal against a judgment of Carr J given on 6 November 1995.

On 24 February 1995 Ms Hall became a bankrupt by virtue of a sequestration order made by a District Registrar of the Court on the petition of Josephine Mary Anderson.  On 1 March 1995 Ms Hall filed an application for the annulment of that bankruptcy.  Her application was heard by Carr J on 24, 25, 26 and 27 October 1995, and his Honour gave judgment on 6 November 1995 dismissing the applicant’s application.

On 6 March 1997, more than fifteen months after the judgment, Ms Hall filed an application for an extension of time within which to file and serve a notice of appeal against the decision of Carr J of 6 November 1995.  That application was listed for a directions hearing on 21 March 1995.  On that day French J heard some oral evidence and adjourned the application for further hearing until 26 March 1997, on which date further evidence was given.  On 3 April 1997 French J dismissed the application by Ms Hall for an extension of time within which to file and serve a notice of appeal against the judgment of Carr J of 6 November 1995.

On 26 June 1997 the respondents in the present appeal filed a notice of motion with supporting affidavit seeking that the appeal be dismissed for want of prosecution or, alternatively, unless the appellant within seven days file a copy of the appeal papers with the Registry, with a certificate by the parties or the solicitors that it has been examined, the appeal be dismissed for want of prosecution.

On 10 July 1997 the respondents filed a further notice of motion seeking orders that the appeal be dismissed as incompetent.  It was conceded by Mr Trichardt who appeared for the respondents, that this latter notice of motion was not served within the time required by O 19 of the Federal Court Rules (‘the Rules’).  Ms Hall in any event disputes the matters going to service of this notice of motion.  However, if the appeal is incompetent, the effect of O 52 r 18 of the Rules is such that a respondent is, unless the Court otherwise orders, deprived of its costs; the Court is not prevented from determining the competence of the appeal in the absence of a challenge by the respondent to its competency.

Ms Hall appeared for herself in these various proceedings.  The court is not unsympathetic to her plight, and recognises the difficulties her lack of representation might cause.  In the circumstances, the Court must be scrupulous lest in the plethora of material, much of which is irrelevant or distracting and which includes a large number of wide allegations, there is not in fact a point of substance to be found.

Further, it is necessary to be conscious that this is a court of law, and that the interests of Ms Hall are not necessarily co-extensive with the interests of justice generally.  The respondents to this application are equally entitled to have their interests considered.

The bankruptcy of Ms Hall arose in the following way.  Ms Hall failed to comply with a bankruptcy notice which made demand for payment of $171,892.18, which was said to be due to Mrs Anderson pursuant to a default judgment given in the Supreme Court of Western Australia on 11 March 1993.  The judgment was in respect of money said to be owing to Mrs Anderson under a mortgage on property owned by Ms Hall in Boulder.  Pursuant to a writ of fieri facias, and notwithstanding proceedings by Ms Hall in the Supreme Court, the mortgagee sold the property.  Mrs Anderson presented a creditor’s petition in this court on 30 August 1994, relying on a debt of $91,892.18, being the balance of the Supreme Court judgment after deduction of the proceeds from the sale of the property.  After a number of interlocutory matters, the District Registrar made a sequestration order on the petition of Mrs Anderson.

The application for annulment of the bankruptcy of Ms Hall before Carr J raised many issues concerning the Supreme Court proceedings, as well as the contention that Ms Hall was solvent when a sequestration order was made.  Before Carr J and before French J, Ms Hall vigorously contended that many aspects surrounding the mortgagee’s sale and the conduct of many people in connection therewith, including the conduct of solicitors, valuers, and other persons, was wrongly decided by Carr J, whose conclusions, it was said, were accepted without proper or sufficient enquiry by French J as to their correctness.

It is the fact nonetheless that Carr J found against all of Ms Hall’s contentions and said of her, “I do not find her to be a credible witness”.  This finding and a similar expression of lack of confidence in the credit of Ms Hall by French J has prompted demands by Ms Hall that she was before French J, and is still, entitled to lead evidence from witnesses deposing to her credibility.

            The application before the primary judge for an extension of time within which to appeal dealt broadly with two issues: the first being the attempts by Ms Hall to lodge a notice of appeal from the judgment of Carr J at the end of November 1995, and the second concerning her reasons for the failure to seek an extension of time until March 1997.

As to the first issue, Ms Hall has vigorously contended that on Monday, 27 November 1995, she presented a document to the registry which was “accepted by the registry” as a notice of appeal.  On any view of the evidence, however, the document initially produced by Ms Hall, whether it be on Monday, 27 November or Tuesday, 28 November 1995, did not comply with Form 55 of the Rules.  That form requires that, after setting out the orders sought, the appellant insert a notice of the need to enter an appearance and a date for settling the papers in the appeal.  Ms Hall contends that she was told by a registry officer to lodge an additional page with the necessary text on it, and this she did on Wednesday, 29 November 1995 through an agent, Mrs Campbell.

The primary judge found in respect of this aspect of the matter as follows:

“ Out of this evidence I accept that Ms Hall lodged an incomplete notice of appeal on 28 November and that she was told she would have to provide an additional page incorporating an appointment clause in accordance with the requirements of the Rules and the prescribed form.  I do not accept her suggestion that she was told on 28 November that the notice of appeal had been “accepted”.  There would be no reason for that statement to be made to her at that time.  Although I have some reservations about the evidence relating to Mrs Campbell, I consider that the course of correspondence is capable of supporting a finding on the balance of probabilities that Mrs Campbell was deputed by Ms Hall to deliver the final page and that at some time during the day on 29 November, Ms Hall made a telephone call to the Registry Office to check that this course would be appropriate.  It appears, however, from her own fax of 8 December, that Mrs Campbell left the page on the counter at closing time and did not deliver it to anyone in the Registry office.  The only people she spoke to, it seems, were people actually leaving the Registry at the time.  This account is consistent with Mrs Campbell’s letter to the Court which was received as an exhibit."

His Honour later said:

“The more likely explanation is that if the document was left at the Registry at closing time and not given to anybody, it was never identified as belonging to the appeal notice and went astray.”

The primary judge indicated, as is the case, that had Ms Hall taken reasonably prompt steps to seek leave to file her notice in time, then delay of itself would be unlikely to prove fatal to her application.

In fact, the application for an extension of time was not lodged until fifteen months after the expiry of time for lodging of her appeal.  Further, in 1995, in correspondence to her from the registry, Ms Hall was informed of the necessity to obtain leave to file and serve a notice of appeal which was out of time.  The primary judge accepted that there was an horrific series of events experienced by Ms Hall during 1996.  Notwithstanding those traumatic events, his Honour said:

“I do not accept that the delay in this matter...is to be explained by the horrific series of events to which she referred in her evidence.  There is no convincing or reasonable explanation for the delay of 15 months in seeking an extension of time within which to appeal.”

The primary judge further had regard to the contents of the grounds propounded by Ms Hall and adverted to the findings of credibility by Carr J by saying:

“The prospect of a successful challenge to that judgment upon the basis of matters raised in her notice of appeal is small.  In part she seems to seek to revisit the factual matters decided against her by the trial judge.”

As earlier indicated, Ms Hall forcefully contends that the factual conclusions reached by Carr J were wrong.

In the light of the above matters, it is necessary first to have regard to O 52 r 15 of the Federal Court Rules which provides:

“15(1) The Notice of Appeal shall be filed and served -

(a)     within 21 days after -

(i)        the date when the judgment appealed from was pronounced;

(ii)       the date when leave to appeal was granted; or

(iii)      any later date fixed for that purpose by the court appeal from; or

(b)     within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

15(2) Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

Notwithstanding the vigour and extent of Ms Hall’s criticism of the judgments of French and Carr JJ, there is no material before this Court to permit it to conclude that French J erred in applying legal principle in making his decision.  In the absence of such an error, a discretionary judgment of the nature involved in the application for an extension of time within which to appeal should stand.  As Kitto J said in Lovell v Lovell (1950) 81 CLR 513 at 532:

“If the judgment is affected by an error in point of legal principle, of course the error may be corrected.  But leaving on one side mistakes of law (for it is conceded on all hands that the learned primary judge made no such mistake in this case), it is true to say of any appeal (other than one which is a re-hearing in the Quarter Sessions sense of the term) that the onus of showing that the decision under appeal was wrong lies upon the appellant: Powell v Streatham Manor Nursing Home (1935) AC 243, at pp 249, 255.  The onus is particularly heavy where an attack is made upon findings of fact made by a judge who had the advantage of seeing and hearing the witnesses; in such a case each judge of the appellate court must put to himself the question: ‘Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?’: Watt or Thomas v Thomas (1947) AC 484, at p 488.  And the onus is similarly heavy where the appeal is against an exercise of a discretion.  ‘A clear conclusion that the judge...was plainly wrong’ is the sole justification for a reversal of his decision.”

In Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1978] VR 257, McInerney J said of applications for extension of time in which to appeal in Victoria at 262:

“The object of the rule is to give the court a discretion to extend the time with a view to the avoidance of an injustice...”

In considering the meaning and application of O 52 r 15(2), the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187 said at 195:

“It should not be overlooked that r 15(2) enables leave to be given ‘at any time’; the ‘special reasons’ relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  ‘Special reasons’ must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

[emphasis added]

In Gallo v Dawson (1990) 64 ALJR 458 at 459, McHugh J said:

“The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195.  When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.  It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.  It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”

See also the judgment of the Full Court of the Federal Court in Shields v Australia and New Zealand Banking Group (unreported judgment, Federal Court of Australia, Sheppard, Lee and Sackville JJ, 27 October 1995).

In the absence of demonstrable error of legal principle in the discretionary judgment to refuse an extension of time in this case, an appeal would be dismissed. However, in this case, the appeal is incompetent.

Section 25(2) of the Federal Court of Australia Act 1976 (‘the FCA Act’) provides:

“Applications:

(a)   for leave or special leave to appeal to the Court; or

(b)   for an extension of time within which to institute an appeal to the Court; or

(c)   for leave to amend the grounds of an appeal to the Court; or

(d)   to stay an order of a Full Court;

may be heard and determined by a single judge or by a Full Court.”     

A single judge in hearing and determining any such application is exercising the appellate jurisdiction of the court.

Whether the order made by French J is interlocutory or a final order, no appeal, either by right or by leave is available to Ms Hall.

In Reid v Nairn (1985) 60 ALR 419, the Full Court of the Federal Court (Fox, Forster and McGregor JJ) concluded that both an application for leave to appeal against an order granting limited discovery by Fisher J and his subsequent refusal to grant leave to appeal against the order to the Full Court of the Federal Court were incompetent.  The Court concluded that the reference contained in the words “unless the Court or a Judge gives leave to appeal” in s 24(1A) of the FCA Act imported a true alternative and was not progressive and thus it was not competent to appeal from a decision of a single judge refusing or granting leave to appeal.

In Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, the Full Court held that when a single judge is exercising power under O 52 r 15(2), the judge is exercising the appellate jurisdiction of the court and not its original jurisdiction.  The Court (Bowen CJ, Lockhart and Sheppard JJ) held that ss 24(1A) and 25(2) of the FCAAct, when read together, meant that an application might be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment.  The Court concluded that the election was between two alternatives, neither progressive nor successive, and that once an order had been made granting or refusing leave, no appeal lay from that order.

The power under O 52 r 15(2) of the Rules for “the Court or a Judge” for special reasons at any time to give leave to file and serve a notice of appeal involves a true alternative and not a progressive choice.  A party wishing to apply for an extension of time within which to institute an appeal must elect between approaching a Full Court or a single judge.

In our opinion, where a Judge has refused to give leave to file and serve a notice of appeal outside the period referred to in O 52 r 15, no appeal to the Full Court, nor an application for leave to appeal made to a Full Court, from the decision of the Judge refusing leave, is competent.  It follows that the present appeal is not competent.

The final matter relates to the question of costs.  Order 52 r 18 relevantly provides:

“(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

(2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.

(3) If a respondent does not move under sub-rule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay the appellant any costs of the appeal proving useless or unnecessary.”

In this case, it is accepted on behalf of the respondents that the respondents did not move in accordance with the time required pursuant to O 19 in respect of their motion that the appeals were incompetent.  It follows that, unless the Court otherwise orders, the respondents are not entitled to receive any costs of the appeal, and the Court has power to order that the respondents pay the appellant any costs of the appeal proving useless or unnecessary.  In the circumstances of this case, nothing is shown as to why the court should order otherwise than in accordance with the restrictions imposed by O 52 r 18(3).  It may be that if a timely motion for an order dismissing the appeal as incompetent had been made, the appeal may not have been prosecuted, although given the personalities involved in this case, that would have been unlikely.  As the Full Court pointed out in Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90, the effect of O 52 r 18(3) is to put the onus squarely on the respondent to an appeal to raise issues of competency at an early stage.

In the circumstances of this case there is no proper basis on which the Court should order that the respondent receive any costs of responding to the incompetent appeal nor is there any reason to order that the respondent pay to the appellant any costs of the appeal.

For the above reasons, the appeal should be dismissed as incompetent and there should be no order as to costs of the appeal.

The appellant appeared in person.

Counsel for the Respondent:           Mr A Trichardt

Solicitor for the Respondent:           Mallesons Stephen Jaques

Date of hearing:                              15 July 1997