John Gordon Tilley v Egan

[2000] QCA 98

[JOHN GORDON TILLEY & Ors v EGAN]
  [2000] QCA 98

COURT OF APPEAL

McMURDO P
McPHERSON JA
ATKINSON J

Application No 2235 of 2000

JOHN GORDON TILLEY AND OTHERS     Applicants (Defendants)

and

BRIAN THOMAS EGAN                  Respondent (Plaintiff)

BRISBANE

..DATE 24/03/2000

JUDGMENT

THE PRESIDENT:  This is an application for an extension of time within which to appeal from a decision of his Honour Judge Skoien giving summary judgment for the respondents in this application on 31 January 2000. 

The time for appealing under UCPR748 is 28 days so that the last day for filing an appeal was 28 February 2000.  This application was filed on 13 March 2000, about two weeks late.  The explanation for the delay is as follows.  After the judgment in the District Court was given, the applicants obtained separate legal representation to examine the question of the liability to them in negligence of their former solicitor.

It seems that the applicants certainly well knew that any appeal was to be lodged by 28 February 2000 but their reluctance to incur further costs in the circumstances is understandable.  There was some dispute between the various solicitors as to who should fund any appeal.  This application is being conducted by the professional indemnity insurers of the applicants' solicitor.

The applicants' current solicitors on this application did not receive instructions in this matter until 3 March 2000 by which time the appeal period had already expired.  It wasn't until 13 March 2000 that the solicitors for the applicant had familiarised themselves with the matter sufficiently to recommend an appeal and to determine the grounds of the appeal.

In my view, the explanation for the delay in the circumstances is understandable.  Without looking too closely at the merits of the appeal, it can certainly be said that there is at least an arguable case.  No genuine prejudice can be pointed to by the respondent.

In the circumstances, I would grant the application and extend the time for filing a notice of appeal in respect of the decision of Senior Judge Skoien on 31 January 2000 until 27 March 2000 and, if necessary, I would also give leave to appeal waiving the requirements of the rules as needed. 

McPHERSON JA:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  The order is the application to extend time for filing a notice of appeal in respect of the decision of Senior Judge Skoien on 31 January 2000 is extended until
27 March 2000.  If necessary, leave is given to appeal.

...

THE PRESIDENT:  The order as to costs is that the costs of and incidental to this application will be costs in the appeal.

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