FEDERAL COURT OF AUSTRALIA

Jessup (Trustee) v Mountain View Farm  [2002] FCA 664

BANKRUPTCY – application for an extension of time within which to file and serve a notice of appeal – six days outside time limit – delay due to error of counsel not applicant – O 52 subr 15(2) Federal Court Rules gives the Court power to grant leave to file and serve a notice of appeal at any time for special reasons – requires a consideration of the demands of justice in accordance with a broad judicial discretion – substantial justice to prevail over technical default – arguable grounds of appeal – short delay – no prejudice asserted by respondents

WORDS & PHRASES – “special reasons”

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court Rules, O 52 r 15

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cited

Jess v Scott (1986) 70 ALR 185, applied

Salter Rex & Co v Ghosh [1971] 2 QB 597, cited

Hughes National Trustees Executors & Agency Co of Australasia Limited [1978] VR 257, cited

Zocchi v The Queen [2000] 116 A Crim R 245, cited

IAN DAVID JESSUP as Trustee of the Estate of GEORGE KEVIN WILSON (a bankrupt) v MOUNTAIN VIEW FARM PTY LTD & OTHERS

No Q 62 of 2002

SPENDER J

BRISBANE

23 MAY 2002

THE COURT ORDERS THAT:

1.             The time within which to file and serve a notice of appeal from the judgment of Spender J given on 20 March 2002 at Brisbane in respect of a matter heard in Cairns be extended until 23 April 2002.

2.             There be no costs on the application.

3.             The applicant is granted leave to amend the notice of appeal within seven days and a copy of that amended notice of appeal should be filed and served on the solicitors for the respondent in the principal proceedings forthwith after filing.

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

REASONS FOR JUDGMENT

1                     This is an application to extend the time within which to appeal a judgment which I gave on 20 March 2002.  The application for extension of time to file and serve a notice of appeal was filed some six days outside the twenty-one-day period within which a notice of appeal is to be filed pursuant to O 52 r 15 of the Federal Court Rules.  The reason for the failure to file a notice of appeal within time appears from a deposition by counsel for the applicant at the trial, who indicates that he advised the applicant that the applicant had twenty-eight days to appeal rather than twenty-one.  The error therefore is very much an error of counsel and not of the party itself.  There is power under O 52 subr 15(2) for the Court to grant leave to file and serve a notice of appeal at any time for special reasons:

“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.”

2                     Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when entertaining an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The matters which his Honour referred to are set out at pages 348 and 349:

1.      applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.  The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.            action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3.            any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.            however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.            the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

3                     Jess v Scott (1986) 70 ALR 185 was another case in which a judge at first instance had dismissed two proceedings that had been brought by the applicant.  The applicant's solicitor received, in due time, instructions to file a notice of appeal to a Full Court of this Court but, due to the fault of the solicitor, the notice of appeal was filed on the day after the last day limited for its filing.  The applicant sought an extension of time pursuant to O 52 subr 15(2) of the Federal Court Rules. 

4                     It was accepted by the Court that the delay was the fault of the applicant’s solicitor and that the respondent had not suffered any prejudice as a result of the delay of one day.  Nevertheless, the respondent’s opposition was based substantially upon an argument that the words “for special reasons” in subr 15(2) should be given a stringent interpretation.  The Full Court in Jess v Scott traced the history of those cases where delay had occurred through the fault of a legal adviser, noting how the hard-line views of earlier times had softened materially, as reflected by the words of Lord Denning in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 where the Master of the Rolls said:

“So Dr Ghosh is out of time.  His counsel admitted that it was his, counsel's, mistake, and asked us to extend the time.  If Dr Ghosh had any merits which were worthy of consideration, we would certainly extend the time.  We never like a litigant to suffer by the mistake of his lawyers.”

5                     The attitude of the Full Court in Jess v Scott was indicated in the following observation:

“… leave to appeal out of time is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula …”

Their Honours in that case quoted with approval the remarks of McInerney J in Hughes National Trustees Executors & Agency Co of Australasia Limited [1978] VR 257 at 262-3 where the Court said:

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

One object of fixing times under the rules is to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations.  A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer ‘at risk’ …

Higinbotham J, referred to the interests of litigants in achieving finality of determination when he said, in Youngman v Melbourne Storage Co Ltd (1885) 7 ALT 53 at 54: ‘When the time has been allowed to elapse that gives the defendant a vested interest in the judgment, his vested interest ought not to be disturbed unless there is some good reason for disturbing it.’ The phrase ‘good reason’ imports, I think, a consideration of whether justice as between the parties is best served by granting or refusing the extension sought …”

6                     Ultimately, as was observed by a subsequent Full Court in Zocchi v The Queen [2000] 116 A Crim R 245 at 246, Jess v Scott is authority for the proposition that:

“… the Court’s power to extend time is a flexible one, designed to enable substantial justice to prevail over technical default.”

7                     In this particular case, the material before me indicates that there are at least arguable grounds of appeal, that the delay is short and not attributable to the applicant but to the applicant's legal advisers, and so far as prejudice is concerned the respondents to this application, who have not appeared for reasons which at present are totally unexplained but which call for an explanation, have not asserted any prejudice.  The respondents have been on notice of the applicant’s desire to appeal from very shortly after the expiry of the as-of-right appeal period, and I have been told from the bar table that, notwithstanding repeated communications in writing as to their attitude to the extension of time, the applicant has not been granted the benefit of a response by the respondent to those communications.

8                     I have just been handed a note which indicates that Mr Sumner Potts of counsel who appeared for the respondents on this application believes the matter was listed for 2.15pm.  The basis for that belief does not appear.  On 8 May 2002, an officer of the Court, acting for the District Registrar, wrote to Mr Bill Royds of Thompson & Royds Lawyers and to Bruce K. Gillan Solicitor, the respective solicitors for the parties, in these terms:

“This matter is listed for hearing of the Applicant’s application for leave to file and serve out of time as follows: 

Time:      10.15 am

Date:      23 May 2002

Place:      Level 7, Commonwealth Law Courts, 119 North Quay, Brisbane.  Duration: One day has been allocated for the purpose. 

Your attention is drawn to the orders, relating specifically to the application for extension of time, made by the Honourable Justice Spender on 1 May 2002 which are as follows:

 Any further material on which the appellant wishes to rely be filed and served by 4pm Tuesday 7 May 2002. 

Any material on which the Respondent wishes to rely be filed and served by Monday 13 May 2002. 

Yours faithfully.”

9                     It is difficult to see how the error to which I have just referred could have occurred.  There is no reason, in my view, why I should not deal with the matter in the present circumstances.  No material has been filed on behalf of the respondents to the application as to why the application should not be granted.  I am presently exercising, as a single judge, the appellate jurisdiction of the Federal Court of Australia and, on the material before me, there is absolutely no reason why an extension of time should not be granted.  On this basis, I think it appropriate to make orders in the terms of the application seeking an extension of time.  Consequently, the Court orders that the time within which to file and serve a notice of appeal from the judgment of Spender J given on 20 March 2002 at Brisbane in respect of this matter heard in Cairns be extended until 23 April 2002.

10                  In the ordinary circumstances, an applicant for a grant of leniency in that party's favour would be ordered, notwithstanding success, to pay the costs of the respondent to that application, but in the circumstances of this case I think it appropriate to order that there be no costs at all on the application.  In particular, the Court notes that the respondents on the motion are not entitled to any costs at all in connection with the application.

11                  It may be that the notice of appeal will have to be amended to incorporate a consequential appeal against the making of the costs order in the original proceedings.  The applicant is granted leave to amend the notice of appeal within seven days and a copy of that amended notice of appeal should be filed and served on the solicitors for the respondent in the principal proceedings forthwith after filing.

Associate:

Dated:              28 May 2002