Henderson, Russell Fraser & Ors Amadio Pty Ltd & Ors (No 5)

[1996] FCA 586

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )       No. VG 260 of 1993
  )                   (No.5)    
GENERAL DIVISION                 )

B E T W E E N:

RUSSELL FRASER HENDERSON AND ORS
  Applicants
  - and -

AMADIO PTY LTD AND ORS
  Respondents

JUDGE:    Heerey J

DATE:     25 June 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

XXXII

EXTENSION OF TIME FOR APPEAL

Application has been made by Messrs Lynch, Korczak and Mayne for an extension of time to appeal against the finding in favour of SGIO denying them indemnity on the ground that they have been in receipt of unlawful secret commissions.  Order 52 r 15 provides that a notice of appeal be filed and served within 21 days after the pronouncement of judgment or within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within that period.  Rule 15(2) provides:

Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

The approach to the exercise of that discretion has been authoritatively considered by the Full Court in Jess v Scott (1986) 70 ALR 185 and especially at 193.

The chronology of events is of some importance in the disposition of this application.  On 23 November 1995 I delivered findings with detailed reasons as to the various issues in this case including the findings that Messrs Lynch and Korczak, employees of Bird Cameron, and Mr Mayne, a partner, had been personally involved in the receipt of secret commissions.  It was quite plain that such findings would, when judgment was finally pronounced, lead to a denial of indemnity from SGIO. 

A number of quite substantial arguments and rulings followed and it was not until 2 April 1996 that the final orders were
pronounced.  On that day, and by consent of all parties, I extended the 21 day period for filing and serving notices of appeal to 28 days.  On 22 April, an application was made on behalf of the present applicants for an extension of leave to appeal.  No material whatsoever was proffered in support of that application.  I am now told it was made without instructions.  In any event, it was refused.  Thus the time for appeal expired on 30 April.  The notice of motion seeking an extension was not filed until 21 May.

Counsel in support of the application urged as the main reason for granting leave what was said to be the circumstance that the present applicants "assumed" that their interests would be protected by their former employer (or, in the case of Mr Mayne, partner) because Bird Cameron had funded their defence at the trial.  The major problem with that argument is that there is no evidence in support of it.  The application is notable for the absence of any direct evidence by the present applicants as to what their beliefs and assumptions were.  Nor do I think it is something which can be reasonably inferred.  Apart from anything else, the present applicants had all ceased their connection with Bird Cameron well before the trial commenced. 

In any case, the evidence put on information and belief seems to be inconsistent with the applicant's assertion.  For example, in the case of Mr Lynch, it appears that on 3 April Bird Cameron's solicitors wrote to him advising him that final orders had been made, telling him of the finding of secret commissions and the
failure of indemnity, advising him that he had until 30 April in which to lodge an appeal, and expressing the opinion that an appeal on the secret commissions issue "may have reasonable prospects of success".  The letter suggested that Mr Lynch contact a Mr Hutchinson of Bird Cameron "to discuss funding for any stay application and for the lodgment of the notice of appeal".

On 12 April Mr Lynch telephoned the secretary of Bird Cameron's solicitor and told her that (as the solicitor deposed) "he had no intention of paying for any costs incurred with respect to an appeal as he did not have the funds to pay for it".  If Mr Lynch in fact had a belief that Bird Cameron would be funding his appeal this was surely the occasion to express it.

The evidence fails to indicate that any consideration was given between 23 November 1995 and 2 April 1996 as to whether or not the present applicants would appeal and if so how that appeal would be funded.  

From 2 April onwards there is no evidence even of an attempt to approach Bird Cameron for funding.   The only possible exception to that is the case of Mr Korczak who had tried on several occasions to contact Mr Hutchinson to discuss funding the appeal but had not been able to get in touch with him.  It would seem that the question of funding for the proposed appeal was not raised with Bird Cameron until 3 May when Bird Cameron's solicitor spoke to Mr Hutchinson about it.  

There is force in what counsel for SGIO puts, namely that such special reasons as exist in this case, in the sense of being unusual circumstances, are ones that militate against the grant of leave.  SGIO does not put forward a case of prejudice, but a litigant seeking an extension of time for appeal cannot simply point to a lack of prejudice on the part of his opponent and then claim an absolute right to an extension of time.

In marked contradistinction to the position which exists where an application is made within the period of 21 days, some special reasons are required if leave is to be granted when the appeal is made outside that period.  This is the more so in litigation like the present case which is extremely complex, involving many parties, and all concerned are entitled to expect that the rules will be complied with.   Were that not so the matter would become quite unmanageable.   The application is dismissed.

I will order that the applicants, that is Messrs Lynch, Korczak and Mayne, pay the costs of SGIO of this application.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of his Honour Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr D Clarke

Solicitor for the applicant:     Barker Gosling

Counsel for the respondent:      Mr C C Macaulay

Solicitor for the respondent:     Phillips Fox

Date of hearing:                 25 June 1996