Minister for Resources v Gunns Ltd

[1995] FCA 222

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG  65 of 1995 
  )    No.  NG 127 of 1995
GENERAL DIVISION                 )

BETWEEN:MINISTER FOR RESOURCES and TASMANIAN CONSERVATION TRUST INC. and ANOR

Applicant

AND:GUNNS LIMITED and TASMANIAN CONSERVATION TRUST INC.

Respondents

28 MARCH 1995

REASONS FOR JUDGMENT
LOCKHART J.
     This is a motion for leave to file and serve a notice of appeal outside the period of 21 days from the date when the relevant judgment was pronounced.  The judgment was given by Sackville J on 10 January 1995. A notice of appeal was lodged from that judgment on the last day for lodging such a document, it was lodged by the Minister for Resources on 6 February. 

The moving party in this motion is Gunns Limited who also seeks to appeal from the judgment of Sackville J and asserts the same grounds of appeal as does the Minister, save that Gunns Limited wishes to add a further ground of appeal attacking his Honour's finding that the first respondent, Tasmanian Conservation Trust Incorporated, is "a person aggrieved" within the meaning of the Administrative Decisions Judicial Review Act 1977, and whether it had standing under the general law to challenge the Minister's decision to grant in principle approval to Gunns Limited for the export of woodchips until 1990. The motion for extension of time is opposed by Tasmanian Conservation Trust Incorporated.

A party who seeks to appeal from a judgment of a judge of the Court is required to file and serve a notice of appeal within 21 days after the date on which the judgment was pronounced. The Court has power to allow further time for the filing of the notice of appeal if it is made by motion upon notice filed within the 21 day period after the giving of judgment. The Court has further power to grant leave to file a notice of appeal out of time when the motion was made outside the 21 day period, but then special reasons must be shown why that course should be allowed - see order 52, rule 15(2).

In this motion, Gunns Limited relies on an affidavit of its solicitor, from which it appears that after the notice of appeal had been filed by the Minister on 6 February - as I have said the last day for the filing of such a document - Gunns Limited then took steps to consider whether or not it should also file a notice of appeal.  That involved communications between Gunns Limited and its lawyers and communications with other persons referred to in the affidavit of Ms Rogers.  It was not until 1 March that the application for extension of time was actually lodged and filed.  There is explanation as to the delay that was caused between 6 February and 16 February.  As to the period before 6 February there is no evidence about that, but Mr Alexis who appears for Gunns Limited has informed me that on his instructions there were communications of an oral nature before 6 February between Ms Rogers and The Australian Government Solicitor and I am content to act on that fact and those instructions. Nothing to the contrary has been asserted.

I have also been informed by Mr Alexis that the reason why the evidence is silent as to what occurred between 16 February and 1 March is that the delay was occasioned by counsel's unavailability. No specific prejudice is pointed to on the part of Tasmanian Conservation Trust Incorporated if the extension of time is granted, save that an additional issue would be raised, namely, the question of its own standing and whether it is "a person aggrieved" within the meaning of the ADJR Act. Whether that adds time to the hearing of the appeal or not is an arguable question, but if it does it is a matter which can be adequately compensated for by appropriate orders as to costs in due course.

I am satisfied that special reasons have been made out for the granting of the extension of time and it would, I think, be in all the circumstances an injustice if leave was not granted.  Accordingly, the Court orders that a notice of appeal may be filed and served by Gunns Limited against the judgment of Sackville J of 10 January 1995 provided it is filed and served on or before Friday 31 March 1995.  Assuming the notice of appeal is filed and the appeal is thus instituted it will be heard together with the appeal No 65 of 1995 which has already been fixed for hearing on 1 June.

As to costs of the motion for leave to appeal out of time, in my view, the proper order for costs is that there be no order as to the costs of any party to the motion. 

The Court orders that on condition that a notice of appeal is filed by Gunns Limited in accordance with the leave granted earlier, that appeal be heard together with appeal number 65 of 1995, and the Court dispenses with the need for separate appeal books in appeal 127 of 1995, and orders that the written submissions that have been ordered in matter 65 of 1995 shall also embrace the issues covered in appeal 127 of 1995, insofar as they are not already embraced by appeal 65 of 1995.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  28 March 1995

Counsel for the Applicants   :        Mr. Johnson

Solicitors for the Applicants     :        Australian Government   Solicitors

Counsel for the Respondents  :        Mr. Alexis

Solicitors for the Respondents:      Dunhill Madden Butler

Date of Hearing             :        28 March 1995

Date of Judgment            :        28 March 1995