Re Pollnow, E.H

[1989] FCA 611

JUDGMENT No. (311 ....... / ..... 89 .......

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CATCHWORDS

PRACTICE AND PROCEDURE - Application for extension of time to lodge appeal from judgment of single Judge - Federal Court Rules Order 52 rule 15 sub-rule 2 - requirement of special reasons for exercise of

Court's discretion.

RE: ERROL HUGH POLLNOW	- Applicant
NB 2782 of 1988
NP 1143 of 1989
Lockhart J. Sydney 8 August 1989

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IN THE FEDERAL COURT OF AUSTRAL14 1

EW ) No. NB 2782 of 1988

1       NP 1143 of 1989

BANKRUPTCY DIVISION	1
RE: ERROL HUGH POLLNOW

Applicant

JUDGE MAKING ORDER:	LOCKHART J.
DATE ORDER MADE:	8 AUGUST 1989
WHERE ORDER MADE:	SYDNEY

MINUTE OF ORDER

THE COURT ORDER THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

NOTE:  Settlement and entry of orders is dealt with under Order 36

of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NO. NB 2782 of 1988

1            NP 1143 of 1989

BANKRUPTCY	DIVISION	1
PE: ERROL HUGH POLLNOW

Applicant

8 AUGUST 1989

REASONS FOR JUDGMENT

LOCKHART J.:

The application to-day is for extension of time to file and serve a notice of appeal from a judgment of this Court constituted by myself on 10 May 1989. On that day the Court heard an application by Err01 Hugh Pollnow, the debtor, to whom I shall refer as the applicant, to set aside a bankruptcy notice of 3 August 1988 issued at the request of Warren Walter Madgwick, the creditor, to whom I shall refer as the respondent.

The bankruptcy notice was based on an order for costs made against the applicant and in favour of the respondent in certain proceedings in the Equity Division of the Supreme Court of New South Wales. The applicant sought to have the notice set aside on two grounds; first on the ground that the order for costs on which the notice was based was not a final order within the meaning of para. 40(l)(g) of the Bankruptcy

Act 1966 ("the Act"); the second ground is irrelevant for

present purposes so I need not state it.

On 10 May the Court ordered that the application to set aside the bankruptcy notice be dismissed and that the applicant pay the respondent's costs of that application. Also on 10 May, after judgment had been given by me, counsel for the applicant then moved in court for an order for leave to appeal to a Full Court of this Court from my judgment.

I granted that leave to the applicant on condition that the grounds of appeal were confined to the question whether the costs order made by the Supreme Court of New South Wales in its Equity Division on 23 July 1984 was or was not a final order. Leave was granted to appeal to the extent that such

leave was necessary. I also ordered that the costs of the

application for leave to appeal be costs in the appeal.

The period of 21 days within which the applicant then

had to appeal expired on 31 May 1989. Counsel's advice was

advised that the notice of appeal must be filed by 31 May. No	sought by the applicant with respect to the appeal and counsel
notice of appeal was filed and served on or before 31 May but on 6 June an attempt was made by the solicitor for the
applicant to file a notice of appeal. That of course was out of time so there could be no valid lodging of the notice of appeal without leave pursuant to the provisions of Order 5 2 rule 15.
In the meantime the respondent had on 1 June presented his petition to sequestrate the estate of the applicant based on the order for costs to which reference has been made. The act of bankruptcy therein alleged being the failure to comply with the requirements of a bankruptcy notice. On the same day, that is 1 June, the applicant filed an application for substituted service of the petition and an order for substituted service was made on 7 June.
On 2 0 June, the petition and the necessary supporting affidavits and documents were sent to the solicitors for the applicant by the solicitors for the respondent. The return date of the petition was 26 July 1989. On 13 July by letter from the respondent's solicitors to the applicant's solicitors, reference was made to the date of hearing as being
petition itself which, as I say, had been sent to the 26 July, that no doubt also appeared from the form of the solicitors for the applicant on or about 20 June.
It was not until 25 July that the application for extension of time within which to file the notice of appeal was signed and it was on the following day, 26 July, that it was filed in this Court. On 26 July, being the return date of the petition, the petition was adjourned to 23 August next.
The evidence in support of the application for extension of time to file and serve a notice of appeal consists of the affidavit of the solicitor for the applicant which so far as relevant assigns as the reason for the notice of appeal not having been filed by 31 May, that it was the solicitor's own inadvertence in not noting the exact date by which the notice of appeal had to be filed.
That is the extent of the evidence in support of the application for extension so far as relevant. This does, I think, explain the reason for the notice of appeal not being filed on 31 May but it says nothing as to why it took from at least 6 June until 26 July for the application for extension of time to be filed. In the meantime, of course, the petition of the respondent was presented as was within the rights of the respondent, a return date obtained, substituted service order made and the return date of the petition brought to the attention of the solicitors for the applicant as early as 20 June or possibly a day or so thereafter.
Nothing was done until 26 July to take any step to file the application for extension of time within which to appeal
although I note, of course, that it was on 6 June that an abortive attempt was made to file a notice of appeal which could not, of course, have been accepted being then out of time . There is simply no explanation as to what transpired between 6 June and 26 July.
The rules of Court, Order 52 rule 15 subrule (2) make it clear that there has to be special reasons for the giving of leave to file and serve a notice of appeal out of time in these circumstances. That particular provision has received the attention of a Full Court of this Court in Jess v Scott (1986) 12 FCR 187. It is fair to say that the judgment of the Full Court, of which I was a member takes a rather liberal view of a rule of this kind. I need not refer to what was said in the case, in the judgment or in the various cases mentioned therein except to say that in the end it is for the Court to determine, according to the justice of any particular case, whether leave should be given to file a notice of appeal out of time and the Court does not today look to technicalities but does look to actual prejudice and seeks to ensure fairness between the parties.
However, the Rules of Court must prima facie be obeyed and there must be some probative material upon which the Court can exercise its discretion. As was pointed out by Lord Guest speaking for the Privy Council in Ratnam v Cumarasamy [l9651 1
WLR at p. 12:

"If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation."

That passage was cited with approval by the Full Court in Jess v Scott at 195.

I am not persuaded that special reasons have been given for the exercise of this Court's discretion to extend time for the applicant to lodge his notice of appeal and I have applied the liberal approach adopted in Jess v c o t ; but in my opinion the application must be refused.

Accordingly, the application for extension of time to file a notice of appeal is dismissed.

I order the applicant to pay the respondent's costs of

that application.

I certify that this and the preceding five ( 5 ) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated:  8 August 1989

Counsel for Applicant/Debtor:	Mr. J. Nicholas
Solicitor for Applicant/Debtor:	Beston & Riordan
Counsel for Respondent/Creditor:	Mr. N. Cotman
Solicitor for Respondent/Creditor:	Madgwic ks
Date of Hearing:	8 August 1989
Date of Judgment:	8 August 1989