Jess v Scott

The matter before the Federal Court of Australia was an application by Michael Patrick Jess (the Applicant) to extend the time for filing and serving a Notice of Appeal to a Full Court of the Federal Court. The Respondents, Amalgamated Metals Foundry and Shipwrights Union, had objected to the application on the basis that the Applicant's solicitor had made an error in the timing of the filing. The Court was required to decide whether the error of the Applicant's solicitor constituted "special reasons" under Order 52 Rule 15(2) of the Federal Court Rules for extending the time for filing the Notice of Appeal. The Court found that the error of the Applicant's solicitor, who was not present in court when judgment was delivered and was engaged on another case during part of the relevant period, did not constitute a deliberate or negligent act but rather a misunderstanding of the date of delivery of judgment. The Court also noted that no prejudice was suggested as the Respondents' solicitor had been under the mistaken impression that the Applicant had 28 days, not 21, in which to appeal. The Court held that the phrase "for special reasons" in Rule 15(2) was intended to distinguish cases where the circumstances warranted the exercise of the Court's discretion to permit an appeal out of time from the usual course according to which the time is twenty-one days. The Court concluded that the error of the Applicant's solicitor constituted a special reason for extending the time for filing the Notice of Appeal, and granted the application on the condition that the Respondents' costs of the application be borne by the Applicant's solicitor personally. The Court ordered that time for filing and service of a Notice of Appeal be extended 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 the order.