FEDERAL COURT OF AUSTRALIA

Mijac Investments Pty Ltd (ACN 084 820 280) v Graham [2010] FCA 895

THE COURT ORDERS THAT:

1.                  The application by the applicant for an extension of time within which to file and serve the proposed notice of appeal is dismissed.

2.                  The applicant pay the respondents’ costs of the application, to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     On 16 August 2010, the Court made orders dismissing the motion before it, with costs.  What follows are the reasons for the making of those orders.

2                     On 30 June 2010, the applicant company (“Mijac”) applied for an extension of time within which to file and serve a notice of appeal from a judgment of Gordon J published on 22 July 2009 (“the primary judgment”).  A draft notice of appeal containing 17 proposed grounds is exhibited to the affidavit of Mr Alan Jorgensen in support of the application for an extension of time.

3                     On 12 August 2009, Mijac filed a notice of appeal from the primary judgment but failed to serve it within the 21 day period provided by the rules of the Court for filing and serving the notice of appeal.  In his affidavit in support of the current application, Mr Jorgensen says that “the date required for serving the Notice of Appeal…was complicated by the fact that the Plaintiff (sic) applied for a Fee Waiver at the time of filing on 12 August 2009, which was subsequently refused” (emphasis in original).

4                     By letter dated 20 August 2009, a “Full Court officer” of the Victoria District Registry of the Court, informed Mr Jorgensen that the fee waiver application had been refused.  The letter said that if the filing fee was paid by 3 September 2009, the notice of appeal would be treated as filed on 12 August 2009.  The penultimate paragraph of the letter said:

If the payment of the filing fee is not received by 3 September 2009, the notice of appeal will be returned to you unprocessed. Thereafter, if you wish to proceed with the appeal you will need to file an Application for Extension of Time to File and Serve a Notice of Appeal, an Affidavit in support of any such application and a Draft Notice of Appeal.

5                     Mr Jorgensen appears to have considered that his extension of time to pay the filing fee absolved Mijac from any obligation to serve the notice of appeal by 12 August 2009.  Nothing in the Court Officer’s letter gives any dispensation from the serving of the notice of appeal which was filed by that date.  There is no basis for the suggestion that the fee waiver application gave Mijac an additional 14 days to serve the notice of appeal.  Mr Jorgensen refers to the Court’s website’s information that a stamped copy of the Notice of Appeal should be served “within 5 days of filing” of the appeal.  Even so, there is nothing to stop the appellant serving a notice of appeal, unstamped, within the time limit provided by the rules of Court.  An appeal is still competent, notwithstanding it is not served, although service should be regularised; see Moore v Tooheys Ltd (1981) 56 FLR 345 at 349.

6                     Documents exhibited to Mr Jorgensen’s affidavit claim that he emailed a copy of the notice of appeal to the respondents on 20 August 2009.  Absent the events that followed which demonstrated a complete disregard for compliance with orders of the Court, it is unlikely that the service of the notice of appeal on 20 August 2009, rather than 12 August 2009, would have proved a problem for Mijac on any application for an extension of time within which to serve the notice of appeal.  Any concerns about the problems which arose from the fee waiver application, can now be considered as purely academic.

7                     Failure by Mijac to comply with orders of the Court concerning the appeal led to Gray J’s upholding of a motion filed by the respondents to dismiss the appeal for Mijac’s failure to comply with directions of the Court; see Mijac Investments Pty Ltd v Graham [2010] FCA 87.

8                     The failures identified by Gray J included the failure to comply with the order of Ryan J, made on 10 September 2009, concerning any motion for the extension of time within which to file and serve the appeal , or an amendment of the notice of appeal, to be determined by Gordon J at the same time her Honour dealt with the costs issues at first instance.  Gordon J published a judgment on the issue of costs on 1 October 2009; see Mijac Investments Pty Ltd v Graham (No 3) [2009] FCA 1109.  The parties did not make any submissions to her Honour on any extension of time issues as directed by the orders of Ryan J.  As Gray J said at [7] of his reasons for judgment, published on 20 January 2010:

Despite this order of Ryan J no motion for any extension of time within which to serve the notice of appeal has ever been filed.  No application for such extension of time has ever been made.  No material has been put before the Court that would justify the granting of such an extension or would explain why the delay occurred.

9                     In his current affidavit, Mr Jorgensen offers no explanation for Mijac’s failure to apply to Gordon J for an extension of time within which to serve the notice of appeal in accordance with Ryan J’s orders, other than to say he considered such an application to be unnecessary.  The judgment of Gordon J, published on 1 October 2009, reveals that Lesley Simons and Associates then acted for Mijac.

10                  After referring to the events of August 2009, Mr Jorgensen, in his current affidavit, at [17] says that Mijac then “hastily appointed sole practitioner, Lesley Simons to take over, but after a few months, she had to be replaced by the current solicitor on file, Frank Sanna on 16 November 2009.”

11                  Prior to 16 November 2009, the Court made orders concerning the conduct of the appeal with which Mijac did not comply.  These included callover orders made by Middleton J to be completed on or before 26 October 2009 and final orders for the management of the appeal made on 27 October 2009.

12                  As Gray J recounts at [11] of his Honour’s reasons for judgment, Mr Sanna advised the Court on 30 November 2009 that he now acted for Mijac.  The parties signed consent orders extending the time for the filing and serving of a further amended notice of appeal and the provision of a draft index to the appeal book to 15 December 2009.  Mijac failed to comply with these orders.  It filed a further amended notice of appeal and a draft index of appeal papers on 17 December 2009.  The later being incomplete.  The respondent’s complained that such documents were defective.  An appointment to settle the appeal papers commenced on 18 December 2009, but could not proceed as Mijac was not in a position to proceed.  On 21 December 2009, the respondents advised Mr Sanna of their objections to the draft index and the further notice of appeal.

13                  On 23 December 2009, the respondents filed a motion to dismiss the appeal.  The motion was heard on 20 January 2010.  On that day Mijac produced a second further amended notice of appeal, containing 44 grounds of appeal from Gordon J’s judgment.

14                  At [21] Gray J said:

There is absolutely no doubt that the respondents have established that [Mijac] has failed to comply with the directions of the Court.  The failures have been frequent.  They have been persistent.  They have been neither contested nor explained, and there has been no expression of any determination to remedy the situation.  In those circumstances, the ground under s 25(2B) (bb) (i) is clearly made out.

15                  Mr Jorgensen’s current affidavit refers to Mr Sanna’s difficulty in obtaining relevant court documents for the draft index.  It otherwise does not explain Mijac’s failure to comply with orders of the Court, save for the assertion that it did not consider that it needed to apply for an extension of time within which to serve the notice of appeal.  Mr Jorgensen complains about Gray J’s dismissal of the appeal on 20 January 2010 in circumstances where Luxton R had extended the appointment to serve the draft index to 27 January 2010.  However, Gray J explained the lack of utility in attempting to settle the draft index on that day.  At [20] his Honour said

There are further difficulties, however.  As I have said, the appointment to settle the index to the appeal book is due to occur on Wednesday of next week, 27 January 2010.  In the meantime, there is a public holiday.  The length of any adjournment obviously begins to become critical.  There would have to be sufficient time for the appellant to file further material and for the respondent to respond to it, if that were seen to be appropriate.  A further adjournment of the conference to settle the index of the appeal papers would be extremely undesirable.  In the context of an appeal that is listed for hearing on 22 February 2010, an adjournment of motions that may determine its outcome seems to be lacking in practicality.  There has been no indication that the appellant would seek to prepare yet another notice of appeal that might contain a better focus in relation to errors on which the appellant might seek to rely.

16                  Mijac contends that the motivating force behind the application to attempt to file the current proposed notice of appeal out of time was Mijac’s inability to access funds, until 11 May 2010.  On that day it received the $91,973.55 which had previously been paid into Court as security for costs.  No explanation is given as to why it took a further 6 weeks for the current application to be made.

17                  Under O 52 r 15 an application for an extension of time within which to file and serve a notice of appeal is required to advance special reasons in support of such application.  In Jess v Scott (1986) 12 FCR 187 at 195 a Full Court described “special reasons” as:

…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 in which an appeal must be filed and served.

18                  Mijac contends that its application is in the nature of one to set aside or vary the orders of Gray J and has addressed its submission to that end.  It has not sought to otherwise advance any reason, or any special reasons, why it has not filed and served its proposed current notice of appeal within the time prescribed by the rules of Court.  Even using Gray J’s judgment as a datum point for the seeking of an extension of time to appeal from the primary judgment, there is no attempt to explain the delay from 20 January 2010 to 30 June 2010, save for Mijac coming into funds in mid-May 2010.  As noted above, there is no attempt to explain the delay from mid-May to late June 2010.

19                  Financial considerations, on their own, are insufficient to provide special reasons to justify an extension of time; see QAAH v Minister for Immigration and Multicultural Affairs [2004] FCAFC 9 at [7].

20                  Taking issue with the judgment of Gray J does not provide a special reason justifying an extension of time within which to appeal.  Justice Gray’s order of 20 January 2010 was entered on 11 August 2010,  at no stage from the making of that order to 11 August 2010 has Mijac requested his Honour to set those orders aside.

21                  Given that I am satisfied that no special reason has been advanced to justify an extension of time within which to file and serve the proposed notice of appeal, it is unnecessary to consider whether issues of res judicata and anshun estoppel arise which would stand in the way of the granting of any such extension of time.  In assessing this application, I have assumed that Mijac has an arguable case in its proposed appeal.

Associate:

Dated:         20 August 2010