Frankipile Australia Pty Ltd v Mahon

The applicant, Frankipile Australia Pty Ltd, sought special leave to appeal to the High Court of Australia from a decision concerning the exercise of discretion in a legal matter. The respondent was Mahon. The core of the dispute revolved around whether the court below had correctly applied established legal principles when considering the relevant factors for granting or refusing an extension of time.

The legal issues before the High Court were whether there was a divergence among Australian courts regarding the considerations relevant to the exercise of discretion in this context, and whether the principles enunciated by Bray CJ in *Ulowski v Hiller* were consistently applied. Specifically, the court was asked to consider whether the availability of an action against a solicitor for negligence was a relevant factor, and whether the period up to the expiration of the statute of limitations plus 12 months was a relevant consideration.

The applicant argued that there was indeed divergence among Australian courts on these points, citing conflicting decisions from various Supreme Courts. They contended that the approach taken in *Birkett v James* by the House of Lords was appropriate for consideration by the High Court, particularly given the differing views on whether an action against a solicitor was a relevant consideration. The applicant highlighted that while *Ulowski v Hiller* was agreed as applicable, Justice White had adopted a different view on the relevance of the statute of limitations plus 12 months, and Bray CJ had left open the question of solicitor negligence. Further, the applicant pointed to conflicting decisions in *Williams* (South Australia), *Borg* (Queensland), and *Soper* (Victoria) regarding the relevance of solicitor negligence, with *Soper* suggesting a midway position.

The High Court noted that the affidavit evidence relied upon was considered "extremely equivocal" and "almost cunningly silent" on significant matters regarding prejudice, which was a finding made by Justice Olsson. The applicant's response to this was that if the availability of an action against a solicitor was relevant, then this would provide a basis for the appeal.