Hope, Kenneth William v Heggies Bulkhaul Ltd

[1996] FCA 530

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )  
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 384 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:KENNETH WILLIAM HOPE

Applicant

AND:HEGGIES BULKHAUL LIMITED & ANOR

Respondent

CORAM:    Burchett J.
PLACE:    Sydney
DATE:     17 June 1996

REASONS FOR JUDGMENT

BURCHETT J.:

The application brought by Ms Howard is for an extension of time pursuant to Order 58, rule 4 (3) of the Federal Court Rules, dealing with appeals from a decision, in this case, of the Commissioner of Patents.

The subrule provides that application to extend the time for filing may be made to the court by notice of motion (a) made at any time, unless a law of the Commonwealth provides otherwise, and (b) supported by an affidavit showing special circumstances.  It is not suggested that any law of the Commonwealth here provides otherwise, and the argument was limited to the question whether special circumstances were
shown.  I should add that it was not argued that the proposed appeal was hopeless or lacking in substance. 

The affidavit filed in support of the motion indicates that a partner in the firm of patent attorneys involved erroneously informed the client that 21 working days were allowed for the filing of an appeal.  In fact 21 days were allowed.  Instructions were actually given within the period indicated by the partner in the firm, but outside the true period.  At the time the instructions were given, or very shortly thereafter, the error was appreciated, and an application was made with great promptness by notice of motion for an extension of time.

It seems to me that the case is precisely covered by the decision of the Full Court in Jess v Scott (1986) 12 FCR 187, to which reference has subsequently been made on a number of occasions, and more particularly in Holpitt Pty Ltd v Varimu Pty Limited (1991) 29 FCR 576, Comcare v A'Hearn (1993) 119 ALR 85, Ferocem Pty Ltd v Commissioner of Patents (1994) 28 IPR 243.

In Jess v Scott, the phrase with which the court was concerned was "special reasons", not "special circumstances". I do not think that makes any difference.  In the context of a rule of precisely the same kind, a Full Court has recently, in an unreported decision delivered in Melbourne, accepted that what was said in Jess v Scott about special reasons was also applicable to special circumstances:  Powerflex Services Pty Ltd v. Data Access Corporation (Burchett, Heerey and Whitlam JJ, 4 June 1996). 

In the circumstances of this case, I think the discretion which I have ought to be exercised.  No prejudice is suggested, and the failure to file the notice of appeal is plainly attributable, and attributable only, to the error which occurred, an error, it may be added, which was not that of the client.  Accordingly, I will make an order.  There will be no order for today's costs.

I certify that this and the preceding two (2) pages are a     true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 17 June 1996.

Counsel for the Applicant:       Ms K. Howard

Solicitors for the Applicant:        Barker Gosling

Counsel for the Respondent:      Ms S.J. Goddard

Solicitors for the Respondent:    Sprusons

Date of hearing:                 17 June 1996