Shields v Australia & New Zealand Banking Group Ltd

[1995] FCA 277

JUDGMENT No. ....... 277 95 .......,... .. .,........

JN THE FEDERAL COURT OF AUSTRALIA	)
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FEW SOUTH WALES DISTRICT REGISTRY NG 55 of 1995

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GENERAI . DIVISION

ISAAC JOHN MACKAY SHIELDS and

JENNIFER UARGARET SHIELDS

Applicants

AUSTRALIAN AND NEW ZEALAND

BANKING GROUP LIMITED

Respondent

Coram:	Whitlam J
Place:	Sydney
Date:	17 February 1995

ONS FOR JUDGMENT

(EX TEMPORE)

This is an application for extension of time in which to file and serve a notice of appeal from a judgment of Einfeld J given on 11 November 1994. The application was filed on 31 January 1995.

Order 55 rule 15 (6) of the Federal Court Rules requires that such an application be accompanied by an affidavit showing (a) the nature of the case; @) the questions involved, and (c) the reason why leave should be given. The affidavit filed in support of the application is that of the first named applicant sworn on 29 January

RECEIVED

- 4 MAY 1995

FEDERAL COURT 01

AUSTRALIA PRINCIPAL

REat8TRY

2.

This affidavit does not describe the nature of the case at all. On 11 November

1994 Einfeld J made orders dismissing an application to set aside a bankruptcy notice

issued against the applicants and extending the time for their compliance with such notice

to 18 November 1994. The applicants had appeared in person at the hearing of their

application on 14 July 1994 and had tiled by 1 August 1994 what his Honour described

as '\oluminous written submissions."

His Honour was able to discern six matters said to just@ the setting aside of the notice. They were (1) that the notice does not detail how the amount on its face was calculated; (2) that the applicants had a counter-claim, set-off or cross demand in terms of section 40(l)(g) of the Bankruptp Act 1966, (3) that there was no debt behind the judgment upon which the notice was based; (4) that the notice overstated the amount

actually owed; (5) that the notice was not in the correct form; and (6) that the notice was

an abuse of process.

Mr Shields' affidavit does not suggest that his proposed appeal involves any

questions arising out of this case at first instance. He does not annex a proposed notice

of appeal.

He does set out reasons why leave should be given. These are that the applicants

were unrepresented; that several persons who have signed a petition annexed to his affidavit believe that there is bias in the courts; that a period of 21 days is not long enough for an unrepresented party to research and file an appeal; and that he has been seriously ill until recently.

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The last mentioned matter, his illness, requires some clarification. Mr Shields is

presently conducting another matter in which I have been giving directions and appeared

before me on 10 December 1994 when he informed me that he had fully recovered From

a serious bout of chicken pox. I raised that with Mr Shields this morning and he agrees

that at least since 10 December 1994 he has been well.

In his argument today, Mr Shields has developed the reasons why leave should be

given by reference to one principal concern. That is the suggestion that 21 days is not

long enough for an unrepresented party to prepare an appeal. Mr Shields said that a

lawyer had at his fingertips recent developments in the law and access to the very latest

materials and that he did not have that. I asked Mr Shields what it was that had recently come to his attention upon which he would rely in the conduct of his appeal, and he indicated that he did not have any such material. I fail, therefore, to see any force in his

submission. It seems to me that the questions that would arise on appeal would be the same questions as were agitated before Einfeld J which Mr Shields had had plenty of time to consider and which he had obviously an opportunity to develop, both orally and

in the written submissions, to which his Honour referred.

Mr Blake, counsel for the respondent, has submitted that the judgment of

Einfeld J, given on 11 November 1994, was an interlocutory judgment. Accordingly, he

submits, it would be necessary for the applicants to obtain leave to appeal from such judgment and any such application should have been made w i t h seven days of the

pronouncement of that judgment in accordance with order 52, rule 10 (2). Mr Blake informed me that he had been unable to discover any authority to the effect that a

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judgment dismissing an application to set aside a bankruptcy notice was an interlocutory

judgment but he developed, by reference to principle, an argument that it did not dispose

of any rights of the parties or affect any rights of the parties and accordingly ought, consistently with such principle, be classified as an interlocutory judgment. However, for the purposes of the present application, I am content to approach the application on the basis that the application is properly made for leave under mle 15 (2), that is, that the

applicants would have had an appeal of right had they lodged it within 21 days.

One further important matter raised in Mr Shields' affidavit is the question of bias.

That has not been developed before me today in Mr Shields' submission. I do not

understand there to have been any submission before Einfeld J of either perceived bias or actual bias on his part, nor indeed is it sought now to raise such an allegation. It appears from what Mr Shields said today, that he may be more concerned that a failure to accord leniency to unrepresented parties in relation to compliance with the provisions of rules as to the filing of appeals creates an impression of bias in the community at large. I note that in the proceedings before Einfeld J there was, at an earlier stage, an

application by notice of motion by the applicants for matters to be determined by a jury. That application was dismissed on 14 July 1994 and is reported at 51 FCR 308. That is

not a matter that Mr Shields has sought to raise today.

The considerations that apply in relation to an extension of time such as Mr

Shields seeks were dealt with by a Full Court of this Court in Jess v Sco# (1986) 12 FCR

187. The Court there rejected a submission that rule 15 (2) required that the words "for

special reasons" should be given a stringent interpretation. The Court held that the cases

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establish that leave to appeal out of time is to be determined by the Court's view of the

demands of justice in accordance with a broad judicial discretion.

Their Honours reviewed the authorities and referred (at 193) to the modem practice in the Supreme Court of Victoria articulated by McInerney J in H v -

National Trustees Executors and A ~ e n q	(1978) VR 257 at 262-263 where his Honour
said this:

"One object of fixing times under the rules is to achieve a timetable for the conduct of litigation in order to achieve Falily of judicial determinations, A successful litigant has an interest in knowing that a claim againsr him has been determined and that he is no longer at

risk ..."

The FuU Court in Jess v Scott referred to this passage as placing some emphasis on the

'Vested interest argument" and their Honours suggested that such a consideration had now been accorded a lesser place than had formerly been the case. Their Honours concluded (at 195) that the provision in rule 15 (2) reflected the same general structure as in the various decisions they had discussed, that is, that there was "the provision of a time for lodgment of appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion!' And their Honours went on to deal with what they described as a "flem%le

discretionary power."

Since that case, the discretion to extend time has been considered by McHugh J

in Gal10 v Dawsoa (1990) 64 AWR 458. His Honour said (at 459):

"77te discretion to extend rime is given for the sole purpose of enabling the Court or Justice to do jrcstice berween the parties: see Hunhes v National Trustees Executors & Aaencv CO of Australasia Ltd [l9781

VR 257 at 262.

771is means that the discretion can only be exercised in favour of an applicant upon proof that strict complinnce with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avew v No 2 Public Service ,4~oeal Boar4 119731 2 NZLR 86 at 92; Jess v Scon (1986) 12 FCR 197 at 194-195.

When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see B u m v Gria [l9671 VR 871 at 872; Hunhes, at 263-264; Mitchehon v Mitchehon (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an applicafion that upon the exphy of the rime for appealing, the respondent has "a vested

right to retain the judgment" unless the application is granted:	Vieniq
v Heinaar (1962) 36 ALJR 200 at 201.

It follows rhat, before the applicant can succeed in this application,

there m& be material upon which I can be s u e d that to refuse the application would constitute an injustice. As the Judicial Committee of the R ivy Council pointed out in /tatmm v Cumamamy [1%5] 1 WLR 8 at 12; [l9641 3 All ER 933 at 935:

"lhe tules of coun, must prima facie be obeyed, and in order to justify a cowt in extending he rime during which some step in procedure requires to be taken there must be some material upon which the coun can exercke its discretion."

In the present case, the applicant sought to explain her delay in seeking an erlension of time by claiming that her decision to appeal "depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professwnar l l is claim was made withour furnishing any details as to the h e spent in research or the nature of the research upon which the applicant was engaged or when it war that she decided to appeal. Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of

the 21+ rime limit for lodging a notice of appeal.

In Mclnemey Jpointed out (at 263) rhat one object ofjking rime under court rules k "to achieve a timetable for the conduct of

litigation in order to achieve finality ofjudicial determinations." When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the ben& of the judgment in his or her

favour. At that stage, the successful pany has a "vested right to retain the judgment." It would make a mockery of 0 70, r 3 if; months after

the h e for appealing has expired, the unsuccessfulparty could obtain an extension of time on the ground that he or she had delayed appealing because the person wanted to research the issues involved

Lack of legal knowledge is a mirfortune, not a privilege. Since I am

mly of the opinion that the proposed appeal of the applicant cannot

possibly succeed, however, it is unnecessary to determine what conclusion I would have reached in this matter if I had thought that the appeal was arguable."

This statement was applied by Mason CI in Hallidav v SACS Grouo P9 Ltd (1993) 67

In order for the Court's discretion to be exercised in favour of the applicants, an

extension of time must be necessary in order that justice be done between the parties. That requires an assessment of the prospects of success of any such appeal. There is

nothing whatsoever in the affidavit of Mr Shields to indicate any prospects of success. I have carefully read the judgment of Einfeld J and the considerations that his Honour addresses are not dealt with at all in Mr Shields' affidavit. In addition, whilst MI Shields says that 21 days is not long enough for an unrepresented party to lodge a notice of appeal, he does not instance any material that has come recently to his attention since the expiration of the prescribed period which would justify an appeal out of time, nor point to any considerations that would need to be agitated in the appeal which he did not

have an opportunity to consider during argument before Einfeld J. Accordingly, whilst

this is not a case that involved delays of months, such as Gall0 v Dawson, it is also a case

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where there is nothing in the material that indicates any reason why the time for appeal

should be extended. The application is dismissed with costs.

I certify that this and the preceding seven pages are a

true copy of the reasons for judgment herein of the

Hon. Justice AP. Whitlam

Associate: L ' 9 d X .

Date: 17 February ,995

The applicant, Mr I.J. M. Shields, appeared in person.

Counsel for the respondent: 0.0. Blake

Solicitors for the respondent: Norton Smith & Co