Pirt Biotechnologies Pty Ltd v Pirtferm Ltd
[2000] WASCA 181
•14 JULY 2000
PIRT BIOTECHNOLOGIES PTY LTD -v- PIRTFERM LTD & ORS [2000] WASCA 181
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 181 | |
| Case No: | FUL:29/2000 | 2 JUNE 2000 | |
| Coram: | MASTER BREDMEYER | 14/07/00 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | PIRT BIOTECHNOLOGIES PTY LTD (ACN 077 417 862) PIRTFERM LTD STANLEY JOHN PIRT MARGARET WATTS PIRT |
Catchwords: | Appeal Extension of time to enter an appeal for hearing |
Legislation: | Rules of the Supreme Court, O 63 r 7 |
Case References: | Jackamarra v Krakouer (1998) 153 ALR 276 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant (Plaintiff)
AND
PIRTFERM LTD
First Respondent (First Defendant)
STANLEY JOHN PIRT
Second Respondent (Second Defendant)
MARGARET WATTS PIRT
Third Respondent (Third Defendant)
Catchwords:
Appeal - Extension of time to enter an appeal for hearing
Legislation:
Rules of the Supreme Court, O 63 r 7
(Page 2)
Result:
Application allowed
Representation:
Counsel:
Appellant (Plaintiff) : Mr G J Archer
First Respondent (First Defendant) : Ms G C Bracks
Second Respondent (Second Defendant) : Ms G C Bracks
Third Respondent (Third Defendant) : Ms G C Bracks
Solicitors:
Appellant (Plaintiff) : Eley Palmer Archer
First Respondent (First Defendant) : Blake Dawson Waldron
Second Respondent (Second Defendant) : Blake Dawson Waldron
Third Respondent (Third Defendant) : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Jackamarra v Krakouer (1998) 153 ALR 276
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is an application by the appellant (the plaintiff in the action below) to extend the time within which the appeal has to be entered for hearing. The application is made under O 63 r 7 of the Rules of the Supreme Court. The appeal was lodged on 7 March 2000 within time. It should have been entered within 12 weeks of that date, ie by 30 May. This application is dated 30 May.
2 What is the reason for the lateness? The appeal was lodged by the plaintiff's solicitors who conducted the trial before Wheeler J. They thought they had good grounds for appeal but, having conducted the trial, felt they were very close to the matter and were not sure of their opinion and wanted a senior counsel's advice as to whether the appeal had good prospects of success. If his advice was that the appeal had no real prospects of success, they would have discontinued it. They sought senior counsel's advice on 29 February and sent him the papers on that day. Despite that and regular reminders by telephone, they were unable to get his advice within the 12 week period. During that time, in order to conserve costs, the appellant's solicitors did nothing to prepare for entry. They did not, for example, prepare the draft appeal book index which is the first step.
3 The leading case on this topic is Jackamarra v Krakouer (1998) 153 ALR 276. I propose to consider the following factors as set out in that case. Firstly, the length of the delay. The draft index should have been settled and the appeal books prepared and the entry filed within the 12 weeks. The extension sought from me was for a period of one month to do those things. That delay is not particularly excessive. It stretches the three month period for entry to four months. That delay is not excessive when compared to the delay in Jackamarra. The decision of the trial Judge was given in that case on 7 August 1995. The appeal was lodged on 14 August. The respondent applied in the 12-week period to dismiss the appeal as incompetent. The respondent said the appeal needed leave and leave had not been obtained. That argument was rejected by the Full Court on 10 November 1995. The respondent granted a two-month extension for entry to 6 February 1996. The appellant did nothing within that time. The appellant filed an appeal book index on 7 March and served it on the respondent on 12 April On 15 July 1996 the appellant applied for an extension of time.
4 I should not blame the appellant for delays of my own. I heard this matter on 2 June and reserved for a few days. However, the file was removed from my desk, presumably for the index to be settled, and was
(Page 4)
- not returned despite enquiries from my Associate, until this week. I was unable to prepare reasons without the file.
5 What is the explanation for the delay? I consider the appellant misused the Rules. None of the time allowed by the Rules to prepare the appeal for entry was used for that purpose. The time was used for an extraneous purpose and the solicitors were slack in not switching to another counsel to obtain a quicker opinion.
6 Will the respondent be prejudiced by the delay? Ms Bracks for the respondent in par 8 of her affidavit states:
"I am informed by the third respondent, Dr Margaret Pirt, and verily believe that the respondents have been approached by various parties interested in commercialising the patents the subject of this appeal, but that no party will enter into any firm arrangement with the respondents in relation to the patents until these legal proceedings come to an end. I am further informed by Dr Pirt and verily believe that the first respondent must meet patent costs for the renewal of the various patents it owns and that it is having to meet these costs while being unable to commercialise the patents and thereby derive income until the appeal is determined."
- I accept that evidence of commercial prejudice.
7 I consider the delay was intentional. Was the delay of the appellant or of its solicitors? I assume both. I assume the client instructed the solicitors to get a silk's opinion and not to incur costs on the preparation of the appeal until the opinion had been obtained and to discontinue the appeal if the opinion was unfavourable.
8 This is a very borderline case. I have listed all the factors which tend to suggest that the extension should not be granted. On the other hand the delay has not been gross: see Jackamarra at 279. I remind myself that the appellant does have an appeal as of right. I have decided to grant the extension but to make a special costs order which will reflect my disapproval of the misuse of the rule mentioned above.
9 I will extend the time for entry to 31 July 2000. The appellant is to pay the respondents' costs of this application on a solicitor-client basis in any event.
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