FEDERAL COURT OF AUSTRALIA

Naxatu Pty Limited v Perpetual Trustee Company Limited [2011] FCA 823

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to file and serve a notice of appeal by 4:00 pm on 20 July 2011 in or substantially in the form of the document entitled ‘Notice of Appeal’ and stamped ‘filed 6 July 2011’.

2.    The respondent’s costs of the application for leave be paid by the applicant’s solicitor personally.

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

Introduction

1    This is an application under O 52 r 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal out of time. There is, in fact, a document entitled “notice of appeal” in the matter and which is stamped as filed on 6 July 2011. In substance the application is for leave to file and serve that notice of appeal.

2    The issue is whether there are “special reasons”, within the meaning of O 52 r 15(2), for giving leave.

3    The principles were established by the decision of the Full Court in Jess v Scott (1986) 12 FCR 187 especially at 195-196, in particular:

What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.

The proposition cannot be accepted that r 15(2) was intended to constrict the broad measure of justice for the individual case which the Court could award upon the principle of Gatti v Shoosmith [1939] Ch 841. No return was contemplated to the old law by which the discretion of the Court to waive the rules was itself fettered by further rules . . .

…

As Walsh J emphasised, a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.

It is in that light that I view the statements, to which the respondent draws the Court’s attention, by Kiefel J in Perry v Comcare [2006] FCA 481, particularly at [8]. There the general context was, as her Honour found at [10], that the applicant clearly lacked any reasonable prospects.

Chronology

4    In the application before me, the judgment in respect of which leave to file and serve a notice of appeal is sought was given by Foster J on 10 June 2011.

5    It appears from the affidavit in support of the application that the solicitor who had the carriage of the matter mistakenly thought that the last day to lodge an appeal was 8 July 2011 whereas the 21 days in fact expired on 1 July 2011. There was a suggestion by counsel for the applicant that because one of the days in the 21 day period was a public holiday then a shorter period for leave was necessary. That is not how I read O 3 r 2(3) of the Federal Court Rules.

6    The relevant chronology is that on 17 June 2011 the solicitors for the applicant wrote to the solicitors for the respondent saying:

Our client is currently in the process of obtaining Senior Counsel’s advice in relation to appealing the Judgment of Justice Foster.

7    On 22 June 2011 the solicitors for the applicant wrote to the solicitors for the respondent saying:

We are instructed to advise that our client will be lodging an appeal and making an application for a stay of the judgment.

8    On 29 June 2011 the solicitors for the applicant wrote to the solicitors for the respondent as follows:

We refer to your letter of 27 June 2011 and as previously indicated our client intends to Appeal the decision of Justice Foster and lodge an application for a Stay. Counsel is in the process of preparing the documents …

9    The solicitors’ error was realised on 5 July 2011 in a conversation with senior counsel who said that the appeal “should have been filed last Friday”.

10    The solicitors for the applicant contacted the solicitors for the respondent asking whether they objected to the lodging of the appeal on 6 July 2011. The conversation included the solicitors for the applicant saying:

I wasn’t aware we were out of time until a short time ago. Can you get your client’s instructions to consent to it being filed?

11    Shortly thereafter, the respondent’s solicitors notified the applicant’s solicitors that the respondent did not consent.

12    The proposed notice of appeal was in fact filed on 6 July 2011.

Consideration

13    As I have indicated, the relevant principles set out in Jess v Scott (above). I also note that in Jess v Scott the Court granted leave subject to the condition, which the applicant’s solicitor offered to accept, that the respondents’ cost of the application be borne by the applicant’s solicitor personally.

14    In the present case the respondent makes no submission with respect to the merits of the present application for leave and submitted that it is a matter for the Court as to whether special reasons are sufficiently made out to justify leave being granted.

15    Thus the respondent does not submit that the grounds of appeal are not proper grounds or that the respondent will suffer prejudice if leave be granted to the applicant.

16    The respondent does refer to the unreported decision in Perry v Comcare [2006] FCA 481 at [8] which I have considered above.

17    The respondent also points out that the evidence is less than complete as to what was occurring between the date of the judgment of Foster J and the conversation between the solicitors for the applicant on 1 July 2011 which is illustrative of their error: the last date for filing was referred to as 8 July rather than 1 July.

18    The discretion is to be exercised having regard to all relevant factors in assessing whether those factors taken together take the case out of the ordinary.

19    I adopt the observations in Parker v The Queen [2002] FCAFC 133 at [6], which have been applied by a later Full Court in Perpetual Trustee Company Ltd v Smith and Others (2010) 186 FCR 566 at [13]:

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.

20    In the present case I take into account, in particular:

    the relatively short period of time for which leave is required;

    the need for leave which is due to a mistake on the part of the present applicant’s solicitors as to the prescribed time for appealing;

    that, although in a different context, the present respondent had been put on notice of the applicant’s intention to appeal, by the correspondence exchanged before 1 July 2011.

    the lack of prejudice to the respondent; and

    the merits of the substantive proposed appeal.

21    In this last respect I take into account that the respondent makes no submission with respect to the merits of the application for leave: although the respondent’s consent or otherwise is not a crucial matter, in my view it is relevant in the sense that the respondent does not contend that the “notice of appeal” is unsustainable or unarguable or similarly defective.

Associate:

Dated:    26 July 2011