Russell, N.R. v Australia & New Zealand Banking Group Ltd

[1985] FCA 29

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IN THE FEDERAL COURT OF AUSTRALIA )

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GENERAL DIVISION	1
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!	DISTRICT OF	THE STATE OF	1
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. NEW SOUTH W E S AND THE )

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AUSTRALIAN CAPITAL TERRITORY No. G424 of 1984

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BE33EEN: NEIL ROBERT USSELL

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THE! COURT ORDERS THAT:

1. I dismiss the application made by the respondent's

notice of motion filed 30 January 1985. I make no order €or

the costs of that application.

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j	2.	I order	that	the	time	€or	serving	the	notice	of
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appeal be extended up to and including 19 February 1985.

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3. I order that the appellant pay the respondent's

costs of the application made by the appellant's notice of

motion filed 6 February 1985.

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IN THE FEDERAL COURT OF AUSTRALIA )

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GENERAL DIVISION	)
1
DISTRICT OF THE STATE OF	)
)
NEW SOUTH W E S AND THE	1
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AUSTRALIAN CAPITAL TERRITORY	) No. G424 of 1984

REASONS FOR J~GME~IT' (ON APPLICATION TO SET ASIDE

NOTICE OF APPEAL)

On 13 November 1984. Morling, J. made a sequestration order in respect of the estate of the appellant on the petition of the respondent. The appellant appeared in person before Morling, J. but on 29-November

1984 he instructed his solicitors to appeal against the

making of the sequestration order. 'On 3 December 1984. the

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appellant's solicitors filed a notice of appeal.

On 5 December 1984, the respondent's solicitors

received through the document exchange 'a letter from the

appellant's solicitors dated 4 December 1984 in these terms:

"We enclose herein a photocopy of the

Notice of Appeal we have filed on behalf of our client.

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Would; you please: .advise whether you are	~ ;~
instructed to appear on behalf of your client in the Appeal or whether you wish

us to serve your client directly with the

Notice.	.~	.~ ~.	.~ .	. ~..	~
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We await your reply'. 'I, : .~ . . ~. . . . . . , .~

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On 20 December 1984, the^ respondent received a ~.

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letter from the appellant's solicitors datedl 14 December

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1984 in these terms:

"We enclose herein by way of service our

client's Notice of Appeal.

me note that this appeal relates to

Bankruptcy proceedings commenced by your

company. Your company's solicitors in the

Federal Court were Messrs. Dawson Waldron

Ei Co. - their reference: 18;CJG 1438/78."

The copy notice of appeal which was enclosed was

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not sealed.

3.

By its notice of motion filed on 30 January 1985,

the respondent now moves the Court for orders that the

notice of appeal. has not been duly served upon the

respondent and that the notice of appeal be set aside. For

his part, the appellant by his notice of motion filed 6

February 1985 seeks an order that the time for service of

the notice of appeal be extended until 22 February 1985.

By Order 5 2 ~ r. 12, an appeal shall be instituted by .~

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filing a not1ce~'of appeai in the prescribed form. By Order

52 r.15,- the notice of appeal shall ' be filed and served

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within ~. 21 days after the date ~ when the^: judgkent .appeared ' .

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from was' pronounced. ~ ~. ' .~ . . ~ ~. . . . . ~. ~ ~ . . ~ .

It ~ is common ground that although. the' notice of

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appeal was filed within time, it was not served within the

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time prescribed by the rules~: the respondent's solicitors

address was the address notified for service, but, because

the document exchange was used, by virtue of Order 7 .4(3)

the notice of appeal is not deemed to be served until two

days after the document is left with the exchange. However,

the wording of Order 52 makes it clear that an appeal is

instituted by the filing of the notice of appeal so that the

service of the notice within time is not a condition

precedent to the valid institution of an appeal (cf.

Whitehouse Hotels Ptv. Limited v. Lido Savov Ptv. Limited

(1974) 131 C.L.R. 333; David Jones (Australia) Ptv. Limited

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v. Arauner (1981) 38 A.L.R. 657; Bishop v. R. (1982) 40

A.L.R. 40).

In Bishop, supra. Deane, (Bowen. J. C.J.

concurring) left open (at p.41) the question whether the

powers of the Court to grant an extension of time for

present purposes are to be found in the general provisions

of Order 3 r.3 or in the more specific provisions of Order

52 c .15(2). There, is likewise' no need to determine this ~. ~

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question here since, whatever the source of the power,

similar considerations will govern the manner of exercise of

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the Court's discretion. . .~

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In- the absence-' of any evidence of prejudice to^ the '. . ,

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respondent if the extension of time were granted,. I am of

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the view that the discretion should be exercised in favour

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of the appellant. This .is not a case where the^ respondent

has been taken by surprise by the late service of the notice

of appeal, having organised its affairs in ignorance of the

appeal: the respondent, through its solicitors, received a

copy of the notice of appeal on 5 December 1984. Further, no application has been made or foreshadowed on behalf of the appellant to stay proceedings under the sequestration

order. No prejudice to the general body of creditors, which

would otherwise be a material factor to be taken into

account, has been suggested.

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5.

It is true that in Bishop, supra, Deane, J. (Bowen.

C.J. concurring) was much influenced in refusing the

application for an extension of time by the circumstance

that the Crown could advance no reason why the notice of appeal was not served within time (see per Deane, J. at p.43). But the case did present the special feature of the

'	Crown exercising its right of appeal against sentence, thus
Placing the prisoner in double jeopardy (see per Deane, J.
at p.42; per Davies, J. at p.44).

I propose to order an extens~ion of time until next

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Tuesday,. 19. February 198.5. In . the circ&stances, it is

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appropriate 'that the .appellant pay the respondent's costs of

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the appellant's application. ~ I propose. t o make no order for

the costs of the respondent's application.

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I make the following orders:

1. I dismiss the application made by the respondent's

notice of motion filed 30 January 1985. I make no order for

the costs of that application.

2. I order that the time for serving the notice of

appeal be extended up to and including 19 February 1985.

3 . I order that he appellant pay the respondent's

costs of the application made by the appellant's notice of

motion filed 6 February 1985.

1.certify that this and the 5 preceding

pages are a true copy of the reasons for

judgment herein of The Honourable

Mr Justice Beaumont.

Associate

Dated