Frederick John Gardiner v Bernard George Gardiner

[1992] FCA 721

Re: FREDERICK JOHN GARDINER; DAVID PERCY GARDINER; GWEN MARY PRESS and ADELE
CLARE CORDEROY
And: BERNARD GEORGE GARDINER and SUSANNE LEONIE GARDINER
No. N G332 of 1992
FED No. 721
Appeal and New Trial

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Appeal and New Trial - practice and procedure - Federal Court of Australia - application for extension of time to serve and file notice of appeal - whether judgment deferred until primary judge had considered submission made by counsel after extempore reasons given but before written reasons distributed - whether delay in filing notice of appeal satisfactorily explained by solicitor waiting until receipt of written record of extempore reasons to file and serve notice of appeal - whether O 52 r 15(2) of the Federal Court Rules has application in these proceedings - whether "special reasons" under O 52 r 15(2) shown - whether O 52 r 15(2) relevant to construction of O 52 r 15(1)(b).

Federal Court Rules - O 52 r 15(1)(b), O 52 r 15(2).

HEARING

SYDNEY

#DATE 9:7:1992

Counsel for the Applicant: Mr J.S. Drummond

Instructed by: Cropper and Parkhill

Counsel for the Respondent: Mr Wilson

Instructed by: McGirr James Hall and Associates

ORDER

THE COURT ORDERS THAT:

1. time for the filing of the notice of appeal be

extended to 4 June 1992;

2. the costs of this application be the respondent's

costs in the appeal.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

This is an application under O 52 r 15(1)(b) of the Federal Court Rules for an extension of time within which to serve a notice of appeal from a judgment given by Einfeld J. The notice of motion is supported by the affidavit of Regina Lee Hayes sworn on 4 June 1992.

1. The circumstances, as they appear from material placed before me, are that his Honour, having heard the proceedings between the parties, gave extempore reasons for judgment on 25 February 1992. At the conclusion of those reasons his Honour was asked by counsel for the present applicants to consider a decision previously given by Wilcox J in relation to the orders mentioned by his Honour in his Honour's extempore reasons. I should add that the proceedings were an application by the judgment debtor to set aside a bankruptcy notice issued against him.

2. This course was apparently permitted by his Honour, notwithstanding the stage that the proceedings had reached. Indeed, on 2 March, substantial supplementary written submissions, on behalf of the judgment debtor, were forwarded to his Honour. His Honour, having considered those submissions, provided a written judgment which reached the solicitors for the present applicants on or about 8 May through the DX system.

3. The last paragraph of his Honour's judgment so delivered reads as follows:
   

"Following the delivery of this judgment counsel for the

creditors asked me to consider the possibility that my

conclusions conflict with those of Justice Wilcox in

relation to the earlier bankruptcy notice which his Honour set aside. As promised, I have now read Justice Wilcox's judgment and I can see no conflict at all. His Honour set aside the bankruptcy notice on the grounds that it combined two separate final orders which, as he said, `offends the principle that it must refer to only one final judgment

order'. I have set aside this bankruptcy notice on quite a different basis. There is no need for anything further to be added or for anything to be reviewed."

1. It would appear from this paragraph that his Honour at least had in mind, when permitting the procedure which had taken place, that there might conceivably be something to be reviewed in relation to what he had already done.

2. The judgment, which is headed as an extempore judgment, is also dated 25 February 1992. If that, in fact, is the date of his Honour's judgment then the notice of appeal from it which was filed and served on 4 June, would have been considerably out of time. If, indeed, the judgment can be regarded as having been given on or about 8 May the notice of appeal is still out of time but only by a short period. In relation to that short period the explanation is given by the solicitor that she was under a misapprehension as to the period prescribed for lodgment of the appeal. She had understood it to be 28 days when, in fact, the period required by the rules is 21 days.

3. I do not think it is necessary for me to decide, in the circumstances, what was the actual date of delivery of his Honour's judgment. It may well be that it is appropriate to regard it as having been delivered on 25 February 1992 because that is the date assigned to it in the written judgment.

4. Be that as it may, I think it is satisfactorily established before me that there were grounds for accepting that his Honour was deferring judgment until he had considered the matter raised by counsel for the judgment debtor, the present applicant, at the conclusion of the hearing before his Honour. The fact that his Honour refers to at least the possibility of the matter being subject to some review, in light of the decision to which he had been referred, certainly imports into the situation a reasonable suggestion that his Honour may not have, at that point of time, regarded the matter as having reached finality.

5. In these circumstances I am of the view that it is established that the representatives of the applicants were reasonably of the impression that the matter was not finalised until his Honour had considered the submission made, as it were, at the terminal stage of the case. To that extent delay has been satisfactorily explained in my view. There is no suggestion put to me of any prejudice of any particular kind accruing to the respondents to this application if the time is extended in accordance with the application.

6. One submission was put to me based upon the wording of O 52 r 15(2), namely that special reasons were not shown within the meaning of that sub-rule. As I read the sub-rule it has no application to these proceedings which are based upon the power given to the Court under O 52 r 15(1)(b). Even if O 52 r 15(2) can properly be prayed in aid of the construction of the extent of the discretion given to the Court under O 52 r 15(1)(b) I would be of the view that, in the somewhat unusual situation presented to me by this case, that special reasons have, in fact, been shown.

7. Accordingly, I extend time for the filing of the notice of appeal in these proceedings up to and including 4 June 1992.

8. This would ordinarily be a matter in which I would regard it as proper for each party to pay their own costs. However, having heard argument in the matter, the appropriate order for costs is that the costs of this application be the respondent's costs in the appeal.