FEDERAL COURT OF AUSTRALIA

Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) v Walsh [2017] FCA 1587

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the Applicants may commence an appeal against the trial Judge’s decision of 9 October 2017 be extended to 4 pm on Monday 18 December 2017, with the Notice of Appeal to be substantively in the form of the draft Notice of Appeal.

2.    The Applicants be granted leave to commence the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    I am dealing with an oral application for an extension of time in which to apply for leave to appeal and, if that extension is granted, the application for leave to appeal. It is convenient to continue to refer to the parties by the designations which they had in the proceedings at first instance.

2    The Applicant commenced proceedings in this Court on 15 April 2015 seeking compensation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

3    The Applicant was wholly unsuccessful in her claim against the First Respondent and successful, in part, in her claim against the Second Respondent, Ms Larkins: Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (No 2) [2017] FCA 852. In a separate judgment delivered on 9 October 2017, Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (No 3) [2017] FCA 1203, the trial Judge made costs orders. The effect of the orders is that, although the First Respondent was wholly successful in the action, it may recover only 10% of its costs from the Applicant.

4    The First Respondent wishes to appeal against the costs orders. It proceeded on the mistaken belief that it was entitled to appeal, as of right, and had 21 days in which to do so. On the last of the 21 days, namely 30 October 2017, the solicitors for the First Respondent attempted to file a notice of appeal. They did so after the Registry had closed for business, apparently by reason of some technical difficulties with the Court’s electronic filing portal. The consequence was that the notice of appeal was not regarded as filed until the following day. When it was pointed out to the First Respondent that it was out of time, it immediately filed an application for an extension of time in which to commence the appeal.

5    On the matter being allocated, my Associate drew the parties’ attention to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), which indicates that leave to appeal is required in respect of any interlocutory judgment of the Court and to the decision of the Full Court in Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; (2010) 265 ALR 112, at [101]. That case is an authority for the proposition that a costs order is an interlocutory order. This meant that as well as requiring an extension of time, the Applicant needed leave to appeal.

6    The First Respondent recognised that today, hence the oral application for an extension of time in which to apply for leave to appeal as well as leave to appeal. These two applications are interrelated and so it was sensible for both to be dealt with at the one time.

7    Normally, on an application for an extension of time of the present kind, the Court has regard to five principal considerations, namely, the length of the extension required, the explanation for the matter not having been commenced within time, the prejudice to the opposing party in the event that an extension is granted, the detriment to the applicant if an extension is refused, and the interests of justice more generally.

8    In the present case, because the period in which an application for leave to appeal may be made is fixed by Federal Court Rules 2011 (Cth) r 35.13 as 14 days, the First Respondent needs an extension of time of some eight days. The significance of that period is to be assessed against the explanation which the First Respondent has provided.

9    I accept that the First Respondent had proceeded on the basis that leave to appeal was not required and had sought to commence an appeal within the 21 day period specified for appeals which lie as of right. Had the First Respondent been correct in that respect, then it would have been out of time for only a very short period. That period is so short that ordinarily it would not take much to persuade the Court that an extension is appropriate. But by reason of the First Respondent needing leave to appeal, the period of extension sought is longer and, as I have said, some eight days.

10    The prejudice to the Applicant if the extension is granted is of a conventional kind. Instead of having finality in litigation, she will be immersed further in litigation which has been on foot since April 2015. She will also face the potential detriment of being exposed to an order for costs in the event that the extension is granted, leave is granted, and the appeal succeeds.

11    The prejudice to the First Respondent turns on whether or not it loses the chance to agitate an appeal on grounds which are reasonably arguable.

12    The Court does not readily grant leave to appeal with respect to orders for costs. There are a number of reasons for that, but a principal reason is that a decision on costs is very much a discretionary judgment. Appellate courts recognise that trial judges are usually in a superior position to exercise the discretion involved, especially given that it can be difficult for an appellate Court to appreciate all the matters which have impinged upon the trial judge’s assessment.

13    In the present case, however, the First Respondent points not just to discretionary considerations, but to some matters of principle. Its draft notice of appeal contains five grounds. It is not necessary to discuss these grounds in any detail as I am persuaded by counsel’s submissions that the First Respondent wishes to argue matters going beyond a challenge on discretionary grounds. Counsel has identified issues of principle affecting the making of the costs order which I consider to be at least reasonably arguable.

14    As to the interests of the administration of justice, there is the importance of finality in litigation. There is the fact that the Applicant is presently unrepresented, and there is the desirability of the Court not granting too readily leave to appeal against judgments concerning costs. The decision to extend time and to grant leave to appeal involves a balancing of all those matters.

15    In my view, this is a case in which it is appropriate for the First Respondent to have leave to appeal and an extension of time in which to do so. Accordingly, the orders of the Court are:

(1)    The time within which the present applicant (the First Respondent at trial) may commence an appeal against the decision of the trial Judge of 9 October 2017 be extended to 4 pm on Monday 18 December 2017, with the Notice of Appeal to be substantively in the form of the draft Notice of Appeal.

(2)    The applicant (the First Respondent at trial) be granted leave to commence the appeal.

Associate:

Dated:    21 December 2017