Jess v Scott

I	i	,
I r,	!
i

: F 7 3

CATCHWORDS

FEDERAL COURT PRACTICE & PROCEDURE - Federal Court pules - Extension -0.f time for filing notice of appeal to Full :Court -

Effect of solicitor's error - Meaning in Order 52 Rule J5(2)

,of

"the Court or a Judge for special reasons may at any t+me give leave to file and serve a notice of appeal" - Width of Court's

discretion.	; l	!
~i	I I

Federal Court Rules Order

52, Rule 15(2)

I I

1 ,

Gatti v. Shoosmith

C19391

1 Ch. 841

Salter Rex & Co. v. Ghosh C19711 2 Q.B. 597

Regina v. Secretary of State for the Home Department, Ex parte

Mehta C19751 1 W.L.R. 1087

Palata Investments Ltd v. Burt	& Sinfield Ltd C19851 2 'All E.R.
517

Hughes v. National Trustees Executors	& Agency Co. of Australasia
Ltd. C19781 V.R. 257

Outboard Marine Australia Pty Ltd v. Byrnes C19741

1 NLS.1V.L.R.

27 I

P:,

JESS -V-

SCOTT & ORS.

NSW 1.23 of 1986

Lockhart, Sheppard	& Burchett JJ.
Sydney
4 November 1986

Id THE

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

No.

1.23

of 1986

INDUSTRIAL DIVISION

BETWEEN:

MICHAEL PATRICK JESS

Applicant

AND:

: I

and

I '

AMALGAMATED METALS

FOUNDRY & SHIPWRIGHTS'

UNION

Respondents

MINUTE OF ORDER OF THE COURT

Judges 'Making Order:

Lockhart. Sheppard & Burchett JJ.

Date of lorder:

14 October,

1986

Sydney

I . ]

l. .

4 "

THE COURT ORDERS THAT:

Upon the condition that the respondents' costs of the

motion are paid by the solicitor for the applicant time

for filing and service

of a notice of appeal be extended

I =

until 14 August 1986 and that the filing and service	of
a notice of appeal which took place on that date	be

taken

to have been a sufficient compliance with this

order.

NOTE :

Settlement and entry

of orders is dealt with by Order

of the Federal Court Rules.

IN THE

FEDERAL

COURT

OF AUSTRALIA

, .

NEW SOUTH WALES DISTRICT REGISTRY	1	No. 1.23 of 1986	!
a .

DIV SION

INDUSTRIAL

---l

BETWEEN :

MICHAEL PATRICK JESS

Applicant

AND :

and

AMALGAMATED METALS

FOUNDRY & SHIPWRIGHTS'

UNION

I ..

Respondents

Coram: Lockhart, Sheppard & Burchett JJ.

-	Date: 4 November 1986

REASONS FOR JUDGMENT

THE COURT

On 23 July 1986 Wilcox J. delivered judgment dismissing

i	.	;
I .

two proceedings brought

by the applicant and ordering him to pay

the

respondents

their

costs

of one of the proceedings.

The

applicant's solicitor received, in due time, instructions

to file

1 and serve a Notice of Appeal to a Full Court of this Court.

Because of a misunderstanding on the part of the applicant's

i solicitor as to the date of delivery of judgment, the Notice of

Appeal was filed and served

on the day after the last day limited

for the filing

of a Notice of Appeal under the Rules. Objection

having been taken, the applicant lodged the application the

i -

subject of these reasons, in which

he sought an extension of time

pursuant to Order 52 Rule 15(2) of the Rules of the Court. At

the hearing of the application, we made an order under that

sub-rule, reserving our reasons, which we

now deliver.

Sub-rule (1) of Rule 15 provides for the appeal period

i "

of 21 days, and

for its extension- upon application made by motion

upon notice filed within

the period of 21 days. Sub-rule

(2)

I	then provides as follows:

"Notwithstanding

anything in

the preceding

sub-rule, the Court or a Judge for special reasons may at any time give leave to file

and serve a notice

of appeal."

Although the sub-rule refers to the giving of leave to

file and serve a Notice

of Appeal, sub-rule (5) provides for the

application to be made "in or substantially in the form numbered 54A in the First Schedule", and that form seeks, not a grant of

leave to file and serve a Notice

of Appeal out of time, but "an

extension of time in which

to file and serve a Notice

of Appeal".

3 .

It is further

to be noted that, while sub-rule

(2) refers to

"special reasons", sub-rule

(6) is in the following terms:

"An application shall be accompanied

by an

affidavit showing

(a) the nature of the case;

(b) the questions involved; and

(c)	the reason why leave should be given,	"
(Emphasis added.)

Also, Rules

15 and

15A contemplate that an application may be

sufficiently

straightforward

to be

dealt

with

upon

the

presentation of a case and argument to the Court in writing.

In the

matter

under

consideration,

there

was

challenge to the explanation bythe applicant's solicitor of his

mistake as to the date of delivery of judgment.

He was not

present in Court when judgment was delivered, and for some part

-. _-

of the relevant period was engaged

lipon another court case in

country town.

No prejudice is suggested, the respondents'

solicitor having been

under the mistaken impression that the

applicant had 2 8 days, not 21, in which to appeal.

The case

raises questions of some general importance,

and there is no

suggestion that the appeal is sought to be maintained mala fide

or upon slight or foolish grounds. The solicitor

for the

applicant, accepting as

he did with frankness the responsibility

I	for the error which occurred, offered	to submit to a condition of
I

the giving of leave under Rule

15(2) that he pay personally the

!	respondents' costs	of this application.
I

4 .

t	The respondents' opposition	to the application was based
I

substantially upon an argument that the words "for special

reasons" in Rule 15(2) should be given a .- stringent

interpretation.

It was urged there was nothing sufficiently

special about the grounds

of the application.

Although counsel for the respondents referred to a -

number of cases dealing with other rules

of court, more or less

differently worded, concerning the relaxation

of appeal times,

there appears to be little authority upon the Federal Court Rule

in question. In Bishop v. R (1982) 40 A.L.R. 40, a Full Court

this Court dealt with an application to extend the time for

service of a Notice of Appeal which had been filed within time.

The majority of the Court (Bowen C.J. and Deane J.) expressed

inclination to agree with the view

of the Judge at

first

I I

instance, Fox J., that Order

52 Rule 15 was not applicable

to--.

such a situation, which was

to be dealt with under Order

3 Rule

3 .

Davies J. directly held that Order

52 Rule 15(2) was not

applicable. The decision of the Court turned upon the special ._

circumstances of a Crown appeal against sentence, and upon the

absence of any acceptable explanation of the Crown's failure to

serve the Notice of Appeal within time. However at p.44 Davies

J., referring to sub-rule ( 2 ) of Rule 15, said:

"The terms of that

sub-rule

set

out

I	principle which has long been established in the law."

I ,:

Since the cases establish, as	we shall show, that leave	to appeal	l .a
I \ ,

out of time is to be determined by the Court's view

of the

I .

t.,

!	demands of justice in	accordance	with	broad	a	judicial	1.
L -

discretion,

and

not

simply

upon

the

application

of any

verbal

r .

I	formula, this dictum does not support the respondents' argument.	p
* '

.	.I
b .

But the	respondents	placed	principal	reliance	upon	the	. .
> ,

decision of Muirhead J. in Re Wolcott and Davis (unreported, 14

December 1984).

In that case, leave having been sought and

obtained to bring an appeal against an interlocutory decision,

the applicants had then failed

to file a Notice of Appeal within

the time permitted by the order granting leave. Muirhead

dismissed the applicants' application for an extension of time,

which had been grounded substantially on the basis that the

failure to file the Notice of Appeal within the requisite period

was the result

of their own solicitor's ignorance

and his belief

that, where--leave-to appeal had been granted,

no Notice of Appeal

was required. Muirhead J. expressed the view:

"It could seldom

be said that the failure

of a

-	solicitor to institute an appeal in time, caused by ignorance or negligence rather than

by fortuitous circumstances, such as sickness

or accident, constituted special reasons."

I I

In Re Coles and Ravenshear

C19071 1 K.B. 1 the Court of

Appeal dealt with an application to extend time for appeal,

the

time having been allowed to expire because a solicitor had

accepted an erroneous opinion

of counsel that time

would run

until a particular date.

The Court refused the application,

I	which was brought under a rule in the following terms:	-.
I

I	"No appeal	tohe	Court	of	Appeal	(in	certain
l

matters) shall, except by special leave of

the Court of Appeal,

be brought after the

expiration of fourteen days.

Collins M.R.

and Cozens-Hardy L.J. each said binding authority

., ,

compelled the view that

a mistake made by a solicitor was an

insufficient ground under a rule expressed in those terms. But

each would have granted an extension

if the matter had been free

from authority. Collins M.R.

at p.4 said:

"I	confess that, if the case were free from

authority, and

felt myself at liberty to

follow my own

judgment in the matter,

should unhesitatingly allow

the time to be

extended. Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules

of practice

to <he

work of

justice

intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after

all

only

intended

as general

rules

procedure, as to be compelled

to do what wlll

cause injustice in the particular case."

Later, at p.5, he said:

"Therefore, where there has been a perfectly

bona fide mistake, and no damage

has thereby

been done to the opposite party which cannot

be sufficiently compensated by costs, I

should, if the matter were at large, be of

opinion that special leave to appeal should

be granted.

Both Collins M.R.

and Cozens-Hardy L.J. referred to the changing

currents

of decision in applications seeking dispensktion from

I ,

the strict consequences

of the Rules. Farwell L.J., onlthe cther

7 .

hand,.. agreed in

the conclusion

~ of the Court without sharing the

regrets of the other Judges. Promptly after this decision, in

a Debtor (1910) 55 S . J .

48, the Court of

Appeal rejected an

application for an extension of tine in a case where a Notice of

Appeal had been served within tine, but entry

of the appeal, and

deposit of a necessary security, had not been effected within

time owing to the appellant's solicitor having been unaware of

the

requirements of a

recent

decision.

The

note

the

Solicitors Journal is curt:

"The Court (Cozens-Hardy

M. R. and Fletcher

Moulton

and

Farwell

L J J . )

dismissed

the

application, holding that a mistake made as

to	the law by the legal advisers of the

appellants did not constitute such special

circumstances as to

entitle

them

extension of time.

Those decisions are consistent with the attitude taken

in the earlier Victorian Full Court' decision Fitzgerald v.

The

1 =,

Trustees Executors and Agency Company Limited (1892)

18 V.L.R.

521 where

the

Court

accepted,

a judgment

delivered

Higinbotham C.J.,

that a misapprehension appeared to have existed

in the legal profession as to which of two rules, nominating

different appeal times, was applicable to a particular type of

proceeding, but held that an extension of time would not be

granted without "special reasons

or grounds for complying with

the application": in the circumstances, the Court plainly did not

kegard the consequences	of a misapprehension as to the applicable
,I

iaw as constituting such grounds.

I '

There has,

however,

been

considerable

shift

judicial opinion, since

the turn

of the century, in favour

of the

approach preferred by Collins M.R.

and Cozens-Hardy L.J. in -

r -

Coles and Ravenshear. In Stanton v. Laws C19341 W.N.(Eng.) 130 a Divisional Court distinguished Re Coles and Ravenshear on the

ground that the applicant's error (he instructed	th filing of an
__--

appeal at 5PM on the last day

for appeal) was not

an error as

the meaning and effect

of the Rule but as to the

practice in the

office of the Court1 Humphreys J-.--(wit%- whom Macnaghten. J..- agreed) is noted as saying "that ordinarily applications to extend the time of appealing were regarded as matters for the

. .

unfettered discretion

of the Court on the ground that in each

case the decision of the Court must be based mainly on the	.	.,
..

circumstances--peculiar to that particular case. "

That was, of

course, only a few years before the decision-i-n Evans

v. Bartlam

C19371 A.C. 473, in which the House

of Lords emphasised the width

of the jurisdiction to excuse default in the analogous case

of a

defendant seeking to have a default judgment set aside and to be

let in to defend.

In another analogous area of

the law, the area

of applications for extension

of a time fixed

by statute for the

bringing of a particular proceeding, the modern view is that "a failure by a solicitor to take the proper steps could itself b

regarded as establishing sufficient cause

for an extension of

time": Martin v.

The Nominal Defendant (1954) 74 W.N.(NSW) 121

at 125, per Walsh J. (See also Hall

v. Nominal Defendant (1966)

117 C.L.R. 423 at 433; Wedesweiller

v. Cole (1983) 47 A.L.R.

528

at 532: Hunter Valley Developments Pty Ltd v. Minister for Home

Affairs and Environment (1984) 3 F.C.R.

344.)

In Gatti v. Shoosmith C19391 1 Ch. 841, the Court of Appeal again considered the effect

of a solicitor's mistake upon

an application for a grant of leave to appeal after the time for

appeal had expired.

The Court emphasised that Re Coles and

Ravenshear was decided under a rule which dealt with

the grant

special leave. Under a rule which did

not require a grant

special leave, Greene M.R. at

844 referred to "the alteration

in.

the rule -as restoring to (the Court) that freedom

of iscretion,

! '

the loss of which had been so much regretted.

" At 845 he cited

I':

L..

an unreported decision

of the Court of Appeal, given in

1923, in

which

Scrutton

and

Atkin

L J J .

had

said

"that

the

'vested

interest' argument no longer carried

the same weight as formerly

and that the time for appealing was now constantly extended in

cases where twenty years	ggo it would not have been." Greene	I
M.R. added:

"On consideration of the whole matter, in my

opinion under the rule as it now stands, the

fact that the omission

to appeal in due time

was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify

the Court in exercising its discretion.

say 'may be,' because it is not

to be thought

that it will necessarily be exercised in

every set of facts. Under

the law as it was

conceived to be before the amendment, such a

mistake

was

considered

to be

circumstances a sufficient ground. What

venture to think the proper rule which this Court must follow is: that there is nothing

in the nature

of such a mistake

to exclude it

from being a proper ground for allowing the

appeal to be effective though out of time:

and whether the matter shall be so treated

must depend upon the facts of each individual

case. There may be facts in a case which

would make it unjust to allow the appellant

to succeed upon that argument.

. -

1	' 10. I
1	I

The

d i s c r e t i o n

o€

t h e ! C o u r t

b e i n g ,

a s

conceive it, a perfectly

free

one,

the

only

question is whethet,

upon

the , f a c t s of

t h i s

par t icu lar

case ,

should

exercised. "

Since

that

decision,

the

coudse of authori ty i n England seems t o

have

been

uniform.

I n SaltLk Rex & Co. v. Ghosh C19711 2 Q.B.

, .

' 597 a t 601 Lord Denning M.R. Isaid:

"So D r .

Ghosh- i s o u t of

t i m e .

H i s c o u n s e l

a d m i t t e d t h a t

it was

h i s ,

,counsel 's , mistake,

and

asked

u s t o ' extend

the

time;

The

difference between two

weeks

and

f o u r

weeks

i s n o t much.

I f D r . Ghosh had

any merits

which were

worthy

consideration,

w e would

ce r t a in ly extend

t h e time.

never

l i k e a

l i t i g a n t

t o

s u f f e r

the

mi s t ake

h i s

lawyers. "

/ ;

I n Regina v. Secretary of

Stajte for the

Home

Department,

Ex par te

Mehta C19751 1 W.L.R.

1087 he Co'ur t of

Appeal

(Lord

Denning

M.R.,

Browne

and Geoffrey

e L J i . )

considered the

f f ec t

Rule 11(4) of

the

Immigrat,4on

Apqeals

(Procedure)

R u l e s

1 9 7 2

. 1

! I ,

which made provision

for anlappea;

l o u t of

time

i n the following

terms :

I i

I ,

t h e

a p p e l l a t e

a u t h q r i t y

s h a l l n o t

required t o dismiss the qppeal but

may

allow

it t o proceed

i f t h e

a .

t h o r i t y

i s of

the

opinion

that ,

r. J

ason

special

circumstances,

i t is j p $ t and

r i g h t so t o

do. "

': i :

Lord Denning, stating the reaions

the C o u r t ,

s a i d a t

1091:

: I

"One

of the special'circ&&.tances here

was

the

11.

fact that the omission was the mistake

Miss Mehta's solicitors.

It was said that

the

mistake of her solicitors

could

not

amount to 'special circumstances' within rule

11. I

do not agree.

In applying rule 11, I

should

have

thqught

hat

appellate

authority might well adopt the practice which

we adopt in this Court

of Appeal here.

are often asked to extend the time of giving

notice of appeal. We never let a party

suffer because his solicitors make a mistake

and are a day or two late in giving notice

appeal.

We always treat it as a ground for

extending the time: see Gatti v. Shoosmith

C19391 Ch. 841. ...

One other point. The tribunal said that they

must

come

c nsideration

on the

preliminary

point\

without

regard

the

substance

or merits of the

appellant'

appeal. That also

is too strict a view.

Here again

think the appellate authority

might well follow the practice in this court. case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time

l '

acccordingly.

If it appears to be a flimsy

case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know

something

about

the

case

before

deciding

whether or not to extend

the time.

In short, the rule gives the tribunal a discretion to do what is just and right. It should be liberally interpreted by them so as not to let an appellant suffer unfairly. This seems to me to be a case where the

tribunal have erred in point

of law and it is

a case €or certiorari

to issue. ...

I think the tribunal did take too strict and

indeed an erroneous view

of the wording of

the rule.

E x

parte Mehta is

of particular interest for present

purposes because of the presence in the rule there considered of

- --_

12.

the words "by reason

of special circumstances", which correspond

to the words in Rule 15(2) "for special reasons", and indeed

might be thought, 'if anything,

to pose a somewhat more stringent

requirement.

_ -

In Palata Investments Ltd v. Burt

& Sinfield Ltd C19851

2 All E.R. 517 the Court

of Appeal was concerned with yet another

variation upon the theme. A practice direction had been issued - in respect of appeals to the Court of Appeal (see C19821 3 All

E.R. 376 at 379) which included

the following:

"In view of the importance

of parties knowing

whether a judgment is final or is still

subject to possible appeal, it will only be

in exceptional cases that such leave will be	.~
granted. "	! '
E l

An appeal had been lodged three days out

of time by reason

of the

overlooking by counsel and solicitor

of an alteration of the time

permitted for appeal. Ackner L.J., delivering the judgment

the Court, said

at 521:

"We wish to emphasise that the discretion

which fell to be exercised is unfettered, and

should be exercised flexibly with regard to

the facts of the particular case. No doubt

in some cases it may be material to have

regard to the merits

of the appeal. ..

The whole

of this matter, it seems to me,

depends on whether or not we can properly look on the delay in this case as being an

exceptional one. In my judgment I would so

classify it. I have already referred to the shortness of the period involved: three days. I have already referred to the fact

that the plaintiffs' solicitors

knew that

there was in all likelihood to be an appeal,

I	-.
I

13.

- -

so that

there

was

question

their

proceeding on the false assumption that they

had achieved finality for their client.

i	have referred to the fact that the solicitors asked specifically of counsel for a statement of the length of time for serving the notice

.. -

and that he gave them a clear statement that

it was six weeks.

There is the additional

I	point that, not content with that,	they
!

checked and it

was only the mischance that

the new edition

of The Supreme Court Practice

arrived a few weeks later that stopped them

appreciating

that

counsel

was

in error.

There is no question of any prejudice arising

to the plaintiffs in the circumstances which

I have described, and in that situation there

was in my judgment absolutely no need to go

into the complex and time consuming question

whether or not there was a good arguable case

on the appeal."

In the context of a statutory power, based upon the

existence of "special circumstances", to grant administration

otherwise than to the applicant executor, Ewbank

J. in In

R r

I	Clore Deceased C19821 Fam. 113 at 117 said:
I

"Speaking for myself, since this is a section

giving discretion to the court, I would not

impose any limitation on the words 'special

circumstances. ' I would say that the words

'special circumstances' are not necessarily

limited to circumstances in connection with

the estate itself or its administration, but

could extend to any other circumstances which

the court thinks are relevant, which lead the

court to

think that

it is necessary, or

expedient, to pass over the executors."

On appeal, the Court of Appeal ( C19821 1 Ch. 456 at 476) , in a

I	joint judgment, contented itself with saying:
I

"We	agree with the judge that there were

special circumstances. There are

no grounds

for interfering with

is decision."

14.

Each of the last three case-s gives a very different effect to a provision containing the word "special"

or the word

l	-	l :
t

"exceptional"

from

that

given

Chamberlain

J. in Reid v.

l,,:

i	. .	I:
l	, .

I	Cloosterman (No. 1) C19711 S.A.S.R. 295	(a case relied on	by the	I .	,
I .
!

I	respondents) to a provision for extension	of time for appeal for
I

"some special reason not arising from the fault

the proposed

appellant". But in that case there was no discussion	f relevant -	i
I

authorities, and the decision	is distinguishable having regard to	P,,
r.
I .I

the very particular context

in which the words "some special

f '.

reason" were there required

to be construed.

The modern practice in the Supreme Court	of Victoria, in	t "
>

relation-to applications for extension of time in which to

>:.

I *~

appeal, is set out in the ludgment of McInerney J.	in Hughes v.	l. i
I -

National Trustees Executors

& Agency Co.. of Australasia Ltd.

I ':

McInerney

262-3

257.

C19781

V.R.

J. said:

1 -

.-	' /
I

"The object

of the rule is

to give the Court a

discretion to extend the time with the view

to the avoidance

of an injustice ...

One object of fixing times under the rules is to achieve a time table for the conduct of litigation in order to achieve finality of

judicial

determinations.

successful

litigant has an interest in knowing that a claim against him has been determined and

that he is no longer 'at risk'

...

Higinbotham, J., referred to the interest of

litigants in achieving	f ality	of
determination when he	said, in Youngman	v .

Melbourne Storage Co. Ltd. (1885)	7 A.L.T.	53
at p.54:

15.

l	'When the time has been allowed to
I	elapse that gives the defendant a

I	judgm nt,	the	interest	vested	in
i

and this vested interest ought not

to be disturbed unless there is

some

good

reason

for

disturbing

it.

, I

The phrase 'good reason' imports, I think, a

consideration of whether justice as between	!
the parties is best served by granting or

refusing the extension sought

...."

Whi-le this passage, as a whole, -evinces an

approach

simiiar to that of the English Court of Appeal, it places some

emphasis on the "vested interest" argument, supported by an

, '/

authority from the last century. Gatti v. Shoosmith shows that

that argument was, as early

as 1923, relegated by Scrutton and

Atkin LJJ. to a lesser place, among the relevant considerations,

than-had formerly been accorded

to it.

In Hughes' Case at p.263, McInerney J. distinguished the

situation which arises under

a rule referring to "special leave",

which he thought

would

require

"something

special

the

circumstances e.g.

that the case involves an important question

of law.. . ".

Of course, the phrase "special circumstances" may

have

particularly

stringent

connotation

when

used

with

reference to an application for special leave, but even in an

application for special leave a broader view has been taken by

the Court

of Appeal of New Zealand (see below).

.'!

In the Supreme Court of New South Wales, the joint judgment of Reynolds, Hutley and Bowen JJA.

in Outboard Marine

16.

Australia Pty Ltd v. Byrnes c19741 1 N.S.W.L.R.	27 at 30 includes
the following:

"We

appreciate

that

the

Rules

of Court,

particularly .those relating to time, should never be allowed to be an instrument of

tyranny. They

do, however, have purposes,

one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that

where genuine issues ought to be litigated, if such can be done with fairness to all

concerned, it

is appropriate to take a benign

view of applications to extend

time."

. I

The general approach

of that Court to cases where a solicitor'

default is put forward as the explanation for serious delays is

also expounded in Stollznow v. Calvert C19801 2 N.S.W.L.R.

749,

in which particular reliance is placed upon the view

of Walsh J.,

expressed in Martin's Case (supra) and also in Witten v. Lombard

Australia Ltd. (1968) 88 N.N.(Pt 1)(NSW)

405 at 412, that the

Court's discretion should not be trammelled by set rules, but

- - .

should be exercised wherever sufficient cause

is shown upon an

examination of -_the-circumstances of the particular case. This

approach was confirmed in Morris v. Public Transport Commission

(unreported, Moffitt P., Glass and Mahoney JJA., 28 May 1984),

where time was extended, in

unusual circumstances, six years

after a Notice of Appeal had been inadvertently filed one day outside the prescribed period. Moffitt P. (with whom Glass JA. agreed) held the Notice of Appeal was irregular, but not a nullity. He said that if the irregularity had been perceived

shortly after it had occurred:

"(1)t is inconceivable that the error would

17.

not have been adjusted

by an order extending

time

. . .

The modern practice is directed

to avoiding technicality and instead seeks to

look to the actual prejudice arising from

the end it is a question of what is just

departures from procedural rules. .. . In

between the parties. The negligent delay by

a plaintiff's solicitor

may operate against a

plaintiff, but he blamelessness of a plaintiff personally for delay has to be

weighed

with such

negligence

and

other

relevant facts.

In New Zealand, even a rule that "except..

by special

leave of the Court

of Appeal, no

appeal.. . shall be brought after

the expiration of three months" has not prevented Gatti v. Shoosmith being accepted as the governing authority: Avery v.

No. 2 Public Service Appeal Board C19731 2 N.Z.L.R. 86 at 91. In

Avery's Case at 92, Richmond J., delivering the leading judgment

of the Court of Appeal constituted by Turner P,, McCarthy J. and	-
himself, said:

"Everything is left to the discretion of the

Court on the wide basis that leave may be

I '

granted in such cases as the justice

of the

case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct

of the parties, the nature

of the litigation

and the need of the applicant on the one hand for leave to be granted together with the

effect which the	granting of leave would	have
on other persons	involved."

It is useful to consider the meaning and application of Rule 15(2) against a background

of an understanding of how other

courts have applied corresponding rules. But

in the end, this

Court must construe and apply

the terms of its own rule. The

~	L *
i

18.

l	question is what that rule means, and	how it is to be applied	~ to
'!

the circumstances

of the case.

It is clear that the rule reflects the same

genera'l

structure exemplified by the various decisions

we have discussed

- the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that he circumstances warrant the exercise of

that discretion.

As Lord Guest, speaking for the Privy Council,

put it in Ratnam

v. Cumarasamy C19641 3 All E.R. 933 at 935:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in

procedure requires to be taken, there must be

some material on which the court can exercise

its discretion. If the law were otherwise, a

party in breach would have an

u qualified

right to an extension of time which

would

defeat the purpose of the rules which is to

provide a time table for the conduct

litigation.

What is needed

to justify an extension of time is indicated in

Rule 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to

proceed, though filed after the expiry

of twenty-one days. In

that context, the expression "special reasons"

is intended to

distinguish the case from the usual course according to which the

time is twenty-one days. ' But it may be so distinguished (not necessarily will, for the 'rule gives a discretion) wherever the $1 Court sees a ground which does justify departure from the general

rule in the particular case. S Ich a ground is a special reason

19. -

I I

because it takes the case out

of the ordinary.

We do not think

i	the use of the expression "for special reasons" implies something	.
narrower than this.

The

proposition

cannot

be accepted

that

rule

15(2) was

I	intended to constrict the broad measure of justice for the

---

individual case which the Court could award upon

the principle

Gatti v. Shoosmith. No return was contemplated

to the old law by

which the discretion of the Court to waive the rules was itsS1T.-

fettered by further rules. Ne agree with the dictum

of Davies J.

cited earlier in these reasons,

and we think the construction

the rule we have adopted is in line

with the decisions

in Ex

parte Mehta, the Palata Investments Case and Avery's Case.

It should not be overlooked that Rule 15(2) enables

leave- to be given "at any time"; the "special reasons" relevant

to such a power cannot but describe an elastic test, suitable for

application across a range

of situations, from an oversight

of a

day to a neglect persisted in during a prolonged period.

would require something very persuasive indeed

to justify a grant

of leave after, for example, a year: equally,

it may be said,

something much less significant might justify leave where a party

is a	few days late. "Special reasons" must be understood in a

sense capable of accommodating both types

of situation. It is an

expression describing a flexible discretionary power,

but one

requiring a case

to be made upon grounds sufficient to justify a

departure, in the particular circumstances, from the ordinary

20.

rule prescribing a period within which an appeal must be filed

and served.

As Walsh

emphasised, a discretion to relax the

l .

I ,

requirement of general rules should not itself become entangled

.. t

web

of rules

spun

out

the

Court's

discretionary

decisions.

The tendency in some of the decisions

we have

discussed to regard a particular factor considered previously, in

the ligli€bf -other-circumstances,-

as-.requiring the same effect to

>	-
I-

be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles;

the facts must be regarded

as unique to the particular case.

-	-..
-

In the circumstances

the present case, which have

_.-

I I '

been outlined at the

commencemenkof these reasons, we formed the

view that there were plainly special reasons which justified the

making of the order sought. In

our discretion, we made it

subject to the condition, which the applicant's solicitor offered

to accept, that the respondents' costs of the application be

borne by the applicant's solicitor personally.	l
l . a
i -
I certify that this and the

preceding nineteen (19) pages

are a true copy

of the Reasons

for Judgment herein

the

Court.

Associate

Dated: 4 November, 1986.

[1986] FCA 473

4 Nov 1986