Hope, Kenneth William v Heggies Bulkhaul Ltd Summary

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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

CaseChat Overview and Summary

The case of Hope, Kenneth William v Heggies Bulkhaul Ltd involves an application by Kenneth William Hope seeking an extension of time to file a notice of appeal against a decision of the Commissioner of Patents. The application was brought before the Federal Court of Australia, in the New South Wales District Registry, and was presided over by Burchett J. The primary issue before the court was whether the applicant had demonstrated special circumstances justifying an extension of time to file the notice of appeal, in accordance with Order 58, rule 4 (3) of the Federal Court Rules.

The court considered the application on the basis that the applicant, who was represented by Ms Howard, had filed an affidavit explaining that a partner in the firm of patent attorneys had mistakenly informed the client that 21 working days were allowed for the filing of an appeal, when in fact 21 days were permitted. The applicant had given instructions within the period indicated by the partner, but outside the true period. The error was recognised promptly, and an application for an extension of time was made with urgency. The court examined the precedent set by Jess v Scott (1986) 12 FCR 187 and other subsequent cases, which held that in the context of a similar rule, the discretion of the court should be exercised when the failure to file the notice of appeal was attributable to an error not made by the client. Burchett J concluded that the discretion ought to be exercised in this case as no prejudice was suggested.

Burchett J granted the application for an extension of time, noting that the failure to file the notice of appeal was attributable to the error made by the patent attorney's firm, and not the applicant. The court made no order for the costs of the application. The decision was certified as a true copy of the Reasons for Judgment by Burchett J on 17 June 1996.

Hope, Kenneth William v Heggies Bulkhaul Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established