Jacobs v Wily

Case [2013] FCA 544

FEDERAL COURT OF AUSTRALIA

Jacobs v Wily [2013] FCA 544

Citation: Jacobs v Wily [2013] FCA 544
Parties: KEVIN ROY JACOBS v ANDREW HUGH JENNER WILY
File number: NSD 922 of 2013
Judge: GRIFFITHS J
Date of judgment: 30 May 2013
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to file a notice of appeal – considerations relevant to the Court’s discretion to grant an extension – whether adequate explanation for delay – whether proposed grounds of appeal have reasonable prospects of success
Legislation: Federal Court Rules 2011 r 36.06
Cases cited: Dunlop v Fishburn (No. 3) [2012] FCA 315
Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 94
Date of hearing: 30 May 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr R Notley
Solicitor for the Respondent: McCormick Williams

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 922 of 2013
BETWEEN:

KEVIN ROY JACOBS
Applicant
AND:

ANDREW HUGH JENNER WILY
Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

30 MAY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant for an extension of time filed on 24 May 2013 is dismissed.

2.The interlocutory application filed on 24 May 2013 is dismissed.

3.The costs of the applications referred to in paragraphs 1 and 2 above are costs in the bankruptcy.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 922 of 2013
BETWEEN:

KEVIN ROY JACOBS
Applicant
AND:

ANDREW HUGH JENNER WILY
Respondent

JUDGE:

GRIFFITHS J

DATE:

30 MAY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant seeks an extension of time for leave to appeal from a decision of Jacobson J delivered on 24 April 2013. His Honour made various orders relating to the question whether certain property of the applicant who is a bankrupt, is properly divisible amongst creditors, with particular reference to ss 58 and 116(1) of the Bankruptcy Act 1966 (Cth) (the Act).  The applicant also seeks a stay of Jacobson J’s judgment and orders, as well as a stay of a sequestration order made by Edmonds J on 22 February 2012. 

    Background

  2. On 22 February 2012, Justice Edmonds made a sequestration order under s 43 of the Act against the applicant’s estate at 58 Johnstone Street, Peakhurst in New South Wales. The sequestration order was made on the basis of a creditor’s petition which itself was based on the failure of the applicant to comply with a bankruptcy notice. The bankruptcy notice related to three judgments in which orders for costs were made against Mr Jacobs (two judgments of the District Court of New South Wales both obtained on 23 June 2011 and one of the High Court obtained on 23 March 2011). The respondent (Mr Wily) to the interlocutory application is the trustee in…

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AGLC
Jacobs v Wily [2013] FCA 544
Case
[2013] FCA 544
Decision Date

CaseChat Overview and Summary

The case of Jacobs v Wily involved Mr Jacobs, the applicant, seeking an extension of time to appeal a decision and related interlocutory relief. The matter was heard by the Federal Court of Australia. The respondent, Wily, opposed the application for an extension of time and related relief on the grounds that the application was filed out of time and lacked merit. The core legal issues before the court were whether Mr Jacobs' application for an extension of time and related relief should be granted, and if so, what the appropriate outcome should be.

The court considered the requirements set out in Rule 36.05 of the Federal Court Rules 2011 for an extension of time. It was noted that Mr Jacobs' application did not meet the necessary criteria, specifically failing to provide a draft notice of appeal and other specified documents. The court also examined the principles guiding the exercise of discretion in granting extensions of time, emphasizing the importance of adhering to legislated time limits and the need for an acceptable explanation for the delay. The court highlighted that prejudice to the respondent and the merits of the appeal were critical factors in its decision-making process.

In dismissing the application, the court found that Mr Jacobs had not provided a satisfactory explanation for the delay in filing his application. It was further noted that the application did not meet the formal requirements as outlined in Rule 36.05. Given these findings, the court held that it was not appropriate to grant the extension of time. Consequently, the related interlocutory application was also dismissed. The court ordered that the costs of both applications be costs in the bankruptcy.

The final orders of the court were that Mr Jacobs' application for an extension of time and his related interlocutory application were dismissed, and he was ordered to pay the costs of both applications as costs in the bankruptcy.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, Mr Jacobs has failed to establish any basis warranting a grant of any of the orders sought by him in the interlocutory application. The rejection of his application for an extension of time requires his related interlocutory application also to be dismissed. Conclusion Accordingly, for all these reasons, and while the Court is not unsympathetic to Mr Jacobs’ personal health issues and responsibilities of caring for his aged parents, I dismiss the applicant’s application for an extension of time filed 24 May 2013 and his interlocutory application filed on the same day and order that the costs of those applications be costs in the bankruptcy.

Ratio Decidendi

Legal Principle Established

Mr Jacobs’ second affidavit dated 24 May 2013 repeats some of the material set out in his first affidavit, but then adds various other matters, many of which are in the nature of submissions in support of his applications. Although the affidavit is not easy to follow, it also appears that Mr Jacobs contends that he was not served with copies of two of the respondent’s affidavits leading up to the hearing on 24 April 2013. Those affidavits were apparently dated 26 February 2013 and another which was filed on 23 April 2013. Mr Jacobs contests claims made by the respondent’s legal representative at the hearing on 24 April 2013, as is reflected in the relevant transcript extracts, that both those affidavits had been served on him. Consideration Rule 36.05 of the 2011 FCRs specifies the following requirements if a party applies for an extension of time:(a)an application in accordance with Form 67;(b)specification that the application may be made during or after the 21 day period as specified in rule 36.03; and(c)the application must be accompanied by each of the following:·the judgment or orders from which the appeal is to be brought;·the reasons for the judgment or orders, if published;·an affidavit stating briefly but specifically the facts on which the application relies and an explanation why the notice of appeal was not filed within time; and·a draft notice of appeal that complies with rules 36.01(1) and (2). The principles guiding the exercise of the Court's discretion whether or not to grant an extension of time for the bringing of an appeal are reasonably well established. Some of the relevant principles are helpfully set out by Katzmann J in Dunlop v Fishburn (No. 3) [2012] FCA 315 at [9] and [10]:The Federal Court Rules 2011 (Cth) (“the Rules”) retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way.The requirement in the former Rules (O 52 r 15(2)) that an applicant show ‘special reasons’ has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187) ), it seems to me that the considerations guiding the exercise of the Court's discretion set out by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6] continue to apply:(a)Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;(b)The applicant must show an ‘acceptable explanation for the delay’; it must be ‘fair and equitable in the circumstances’ to extend time;(c)Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;(d)Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension;(e) The merits of the appeal are to be taken into account.