Salmon v Albarran

Salmon and Albarran were the parties involved in a dispute before the New South Wales Court of Appeal. The applicants sought an extension of time to file and serve an appeal under rule 51.9(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). This rule permits the court to extend the time for filing and serving a notice of appeal if a notice of intention to appeal has been filed and served within the prescribed time.

The central legal issue before the Court of Appeal was whether the power to grant an extension of time under rule 51.9(1)(b) could be exercised in circumstances where no notice of appeal, or any other proceeding, had been commenced. The applicants had filed a notice of intention to appeal but had not subsequently filed a notice of appeal.

Meagher JA determined that the power conferred by rule 51.9(1)(b) is contingent upon the existence of a proceeding within which that power can be exercised. In the absence of a filed notice of appeal, which is the initiating document for an appeal proceeding, there was no such proceeding. Consequently, the Court of Appeal held that it lacked the power to grant the extension of time sought by the applicants.

The Court of Appeal dismissed the applicants’ notice of motion with costs, including the costs of a prior hearing before Griffiths AJA. Additionally, the Court set aside an order made by Griffiths AJA on 17 January 2024.