Emmerton v Clerk of the Supreme Court

The Court of Appeal of New South Wales considered an appeal by Mr Emmerton against a decision of the Supreme Court. Mr Emmerton sought to appeal against a decision of the Supreme Court, but the Clerk of the Supreme Court had refused to accept his notice of appeal on the grounds that it was out of time. Mr Emmerton contended that the Clerk had no power to refuse to accept the notice of appeal.

The central legal issue before the Court of Appeal was whether the Clerk of the Supreme Court had the authority to refuse to accept a notice of appeal on the basis that it was lodged out of time, or whether such a determination was a matter for the Court itself.

The Court of Appeal held that the Clerk of the Supreme Court did not have the power to refuse to accept a notice of appeal on the grounds that it was out of time. The Court reasoned that the rules of court prescribed the time limits for lodging an appeal, but the power to extend those time limits, or to determine whether an appeal was out of time, rested with the Court itself, not with the administrative staff. The Clerk's role was to receive and process documents, not to adjudicate on their timeliness or validity in a way that prevented their lodgement.

The Court of Appeal ordered that the Clerk of the Supreme Court accept Mr Emmerton's notice of appeal for filing.