Tillmans Butchery Pty Ltd (In Liq) v Huntingford, R.E
[1990] FCA 751
•24 DECEMBER 1990
Re: TILLMAN'S BUTCHERY PTY LIMITED (IN LIQUIDATION)
And: ROBERT EDWIN HUNTINGFORD
No. ACT G60 of 1990
FED No. 751
Practice
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Practice - Federal Court Rules - Application seeking extension of time for filing notice of appeal from Supreme Court of the Australian Capital Territory - Failure to file and serve notice within prescribed time - Test to be applied - Failure by applicant to comply with requirements of Federal Court Rules - Delay in informing respondent of intention to seek extension of time - Prejudice to respondent - Extension granted for appeal limited to quantum of damages.
Federal Court Rules, Order 52 sub-rules 15(2) and 15(6).
HEARING
CANBERRA
#DATE 24:12:1990
Counsel for the applicant : Mr P.L.R. Sheils, QC
Solicitors for the applicant : Nevill and Edwards by their
Canberra Agents, Vandenberg, Reid, Pappas and McDonald
Counsel for the respondent : Mr R.L. Crowe
Solicitors for the respondent : Meyer Boettcher and Clapham
ORDER
The applicant have leave, pursuant to Order 52, subrule 15(2) of the Federal Court Rules, to file and serve not later than 11 January 1991 a notice of appeal from the judgment of the Supreme Court of the Australian Capital Territory given on 20 September 1990 in proceedings numbered SC 368A of 1988 in which Robert Edwin Huntingford was the plaintiff and Tillman's Butchery Pty Limited (In Liquidation) was the defendant, such appeal being limited to the quantum of damages properly payable by the applicant to the respondent.
The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.
JUDGE1
This is an application by Tillman's Butchery Pty Limited (In Liquidation) ("the applicant") pursuant to Order 52, sub-rule 15(2) of the Federal Court Rules for an extension of time to file and serve a notice of appeal from the judgment of the Supreme Court of the Australian Capital Territory (Higgins J.) given on 20 September 1990 in an action in that Court in which Robert Edwin Huntingford ("the respondent") was the plaintiff and the present applicant was the defendant. The Supreme Court ordered that there be judgment for the respondent against the applicant in the sum of $490,552.21 in respect of personal injuries received by the respondent in an industrial accident on 10 October 1985 at the wholesale butchery which was operated by the applicant and where the respondent was employed.
Sub-rule 15(1) of Order 52 of the Federal Court Rules, so far as presently relevant, provides that a notice of appeal is to be filed and served within 21 days after the date when the judgment appealed from was pronounced. Sub-rule 15(2) provides:
"Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal."
Where leave is sought pursuant to sub-rule 15(2), an applicant may present his case and his argument in writing (sub-rule 15(3)). A written case is to state as concisely as possible the circumstances out of which the application arises, the contentions to be urged by the party concerned and the reasons relied on, with, so far as practicable, references to the portions of the transcript relied upon and with a copy of those relevant portions annexed (rule 15A, sub-rules (4) and (5)). If an applicant does not proceed by written case, the application is to be determined after an oral hearing (sub-rule 15(4)). An application is to be accompanied by an affidavit showing the nature of the case, the questions involved and the reason why leave should be given (sub-rule 15(6)). It is tolerably plain that, where the applicant does not proceed by written case, the supporting affidavit or the oral submissions should deal with the matters which the rules require to be included in a written case.
The appeal period expired in 11 October 1990. The application for an extension of time was filed on 24 October 1990. It was filed on behalf of the applicant by Vandenberg Reid Pappas and McDonald, Solicitors, as Canberra Agents for the Sydney firm of Nevill and Edwards. They were the solicitors who had acted for the applicant in the action in the Supreme Court. The application was accompanied by the affidavit of Geoffrey John Maddocks, Solicitor, sworn on 23 October 1990. The affidavit contained 7 paragraphs reading as follows:
"1. I am the Solicitor for the Defendant/Appellant (sic) in this matter.
2. On 20th September, 1990, Mr Justice Higgins handed down a written judgment in Canberra following the taking of evidence on 10th September 1990.
3. I received a copy of the judgment on 21st day of September, 1990 and immediately forwarded a copy of same to Counsel to draft a Notice of Appeal. At this stage I had been informed and verily believed that the time for the filing of such a Notice in this Honourable Court was 28 days as is the case with appeals to the New South Wales Court of Appeal.
4. I am informed and verily believe that from 23rd September until 1st October, 1990 Counsel retained in this matter was overseas and that from 8th October until and including 12th October he was absent from his Chambers attending a country circuit in New South Wales.
5. I did attempt to contact Counsel unsuccessfully during the week of 8th October, but believing that I had 28 days in which to file and serve the Notice I did not instruct alternative Counsel to draft the necessary document.
6. A draft Notice was received in my office on Thursday 18th October, 1990. I immediately caused a copy to be sent by fax to my Canberra Agents for engrossing and lodgment. I was subsequently informed that the registry had refused to accept the Notice as the time for filing, namely 28 days had expired.
7. I respectfully move this Honourable Court to exercise its discretion pursuant to Order 52 rule 15(2) of the Federal Court rules and to extend the time for filing and service of a Notice of Appeal in this matter."
The affidavit clearly did not comply with the requirements of Order 52, sub-rule 15(6). It did not show the nature of the case and it made no attempt whatsoever to identify the questions involved. In particular, a copy of the reasons for judgment of the Supreme Court was not annexed. In relation to the reasons why leave should be given, it was totally inadequate. Paragraph 3 gave no information whatsoever as to the person or persons who informed the deponent that the time for filing a notice of appeal was 28 days or the circumstances in which that information was conveyed. It is hardly credible that it could have been the Canberra Agents. Further, the affidavit offered no explanation as to why no steps were taken in relation to the matter between 1 and 8 October 1990 when, so far as appears from the affidavit, counsel retained in the matter was available in Sydney.
The inference is clearly open upon par.3 of the affidavit that counsel was being instructed to draft a notice of appeal simply by way of protection of the applicant's interests, leaving the question whether the appeal was to be prosecuted to later determination when the prospects of success of the appeal, or of particular grounds of appeal, had been assessed. It does not appear that any advice was prepared, either by counsel or solicitor, as to the prospects of success upon an appeal in relation to liability or quantum of damages. There is nothing in the material before the Court to show that any such advice has yet been furnished to the applicant or that firm instructions to prosecute an appeal, assuming the extension of time sought is granted, have been given.
When the application for extension of time and the accompanying affidavit were lodged at the Registry of the Court for filing, the solicitors for the applicant were informed that the affidavit provided insufficient information for the hearing of the application and that a date somewhat in advance of that which would ordinarily have been assigned for the hearing of the application would be fixed so as to enable supplementary affidavits to be prepared and filed. The hearing date assigned was 19 December 1990.
No additional affidavits were filed on behalf of the applicant prior to the date fixed for the hearing. On the morning of that day, however, a further affidavit sworn by Geoffrey John Maddocks on 18 December 1990 was filed on behalf of the applicant. That affidavit contained 5 paragraphs reading as follows:
"1. I am the Solicitor for the Appellant (sic).
2. The basic nature of the case was the Plaintiff sustained injury in the course of his employment on 10th October, 1985 in the course of his employment with the Defendant/Appellant (sic) as a foreman/butcher.
3. Annexed hereto and marked with the letter 'A' is a copy of the Judgment and Orders of His Honour Mr Justice Higgins of 20th September, 1990.
4. I am informed and verily believe that His Honour may have made errors of law in making a finding that the Defendant/Appellant (sic) was negligent, and/or that no provision was made for contributory negligence.
5. In the alternative I believe the quantum of the verdict to be excessive in the circumstances and seek leave of this Honourable Court to allow an Appeal to proceed out of time for the reasons stated in my previous Affidavit."
It is equally clear that that affidavit did not remedy the deficiencies in the earlier affidavit. Thus, the applicant has failed to comply with the requirements of Order 52, sub-rule 15(6).
The application is opposed by the respondent. He relies upon an affidavit sworn by himself on 19 December 1990. In that affidavit, the respondent deposed to the following matters:
"3. On 12 October 1990 I was informed by my Solicitors Messrs Meyer Boettcher and Clapham and verily believe that they have not been served with any notice of appeal against Mr Justice Higgins decision. I instructed my Solicitors, and verily believe, that they enquired at the Federal Court Registry and were advised that no appeal had been lodged.
4. Soon after 12 October 1990 I enquired from my Bank, the National Australia Bank in Dickson in the said Territory, about obtaining an overdraft facility on my cheque account in the sum of $30,000.00. This was to enable me to pay my debts while awaiting the Judgement monies. I instructed my Solicitors to write to the National Australia Bank advising them of Mr Justice Higgins Orders. ...
5. On or about 19 October 1990 I obtained an overdraft facility for my cheque account from the National Australia Bank in the sum of $32,000.00. From this money I purchased a second hand Ford LTD in the sum of $15,000.00. I also paid the stamp duty and the insurance from monies in my cheque account. I repaid my father the sum of $7,000.00 and I repaid my friends the sum of $2,000.00. The rest of the money was spent on miscellaneous expenses, like rates on my home. I have remaining, in my cheque account, approximately $1,300.00. ...
6. On or about 13 November 1990 I was advised by my Solicitors and verily believe that they had been served with an Application to the Federal Court for an extension of time in which to file an appeal.
7. I have not received any part of the Judgement monies since 20 September 1990.
8. On 10 December 1990 I instructed my Solicitors to make an Application in the Supreme Court of the said Territory for Judgement, against Tillman's Butchery Pty Limited (In Liquidation), to be entered against The Federation Insurance Limited, as the insurer for Tillman's Butchery Pty Limited (In Liquidation). The Application came before the Chief Justice on 14 December 1990. His Honour granted the Application."
One of the annexures to the affidavit shows that the overdraft is secured by mortgage on the premises owned by the respondent and his wife and in which they reside and that the respondent's wife has also guaranteed repayment of the amount advanced.
The circumstances in which the respondent was injured were found by Higgins J. to be as follows:
"The defendant's premises were fitted with a system for transporting carcasses from the cool room to a loading dock. This was a series of hooks on runners attached to overhead rails. The rail system ended with an adjustable 'swing rail'. The latter was designed to protrude into the rear of various refrigerated trucks. There, the carcasses were progressively removed from the swing rail and manually transferred to hooks on a similar rail system within the truck. Meat in the trucks was grouped or sorted to accommodate orders received from various retail butcheries to which the meat was to be delivered.
About 20 carcasses of lamb had been accumulated on the swing rail before the plaintiff was injured. He had commenced work about 3.30am. There was one other employee available to assist the plaintiff. The loading system was that the plaintiff attended at the rear of the refrigerated truck after the carcasses had been pushed along the fixed rails to the swing rail. The latter was adjusted to the height of the rear tray of the truck. The plaintiff then progressively removed carcasses from the swing rail and rehung them on the truck rails, pushing them down along the rails to the front end of the truck where the second employee sorted and marked the carcasses and other meat to accord with orders to be filled. The truck tray was about 1.2 metres above ground level. It had a deep stair well protruding into the rear of the truck about 1 metre square. As carcasses were transferred, the plaintiff had to lean out further and further to pull in and transfer the next carcass. Of course, after four or five carcasses were transferred, the line of waiting carcasses would have to be pushed further along to the end of the swing rail. It appears four or, perhaps, five carcasses could be reached. Obviously enough, with the edge of the rear tray complicated by the presence of the stair well, with the residual water from the previous day's hosing out of the rear compartment, it would not need expert evidence to conclude that the plaintiff, leaning out further and further to get the greatest number of available carcasses before having to alight and push the line along, was at risk of slipping over the edge and falling. This is precisely what happened. It is obvious to me, though the details are unclear in the plaintiff's mind, that he slipped off the edge of the stair well and fell to the ground."
Higgins J. also found that, as a result of the accident, the respondent suffered an extremely serious injury to his right heel and ankle. The amount of $490,552.21 awarded as damages was made up of the following components:
General damages $ 85,000.00 Interest on 50% thereof 18,275.00 Past wage lost 82,950.00 Interest on net loss 17,230.00 Loss of earning capacity 252,000.00 Future medical and medication 16,500.00 Griffiths v. Kirkemeyer 1,855.00 Fox v. Wood 6,995.00 Out-of-Pockets 9,747.21 Total $490,552.21
It is common ground that the application for an extension of time was not served on the solicitors for the respondent until 9 November 1990. It is also not disputed that the solicitors for the respondent were not informed prior to that date that the applicant desired to appeal against the judgment of the Supreme Court and proposed to seek an extension of time for that purpose. The solicitors for the respondent appear to have been given no further information than was contained in the affidavit of Mr Maddocks sworn on 23 October 1990. They were not, for instance, furnished with a draft notice of appeal. That was not done until the morning of the hearing.
Counsel for the applicant submitted that the evidence established that there had been a bona fide mistake on the part of the applicant's solicitor that the appeal period was 28 and not 21 days from the date of the judgment of the Supreme Court and that that was the sole reason for the appeal not having been instituted in due time. He further submitted that, that being established, the Court was obliged to grant an appropriate extension of time to file a notice of appeal unless there was shown to be some compelling reason to the contrary. It was submitted that the respondent could not point to any such compelling reason. Counsel also submitted that the authorities show that, where a notice of appeal is filed late because of inadvertence on the part of the party's solicitor, the failure to comply with the prescribed time limit is to be excused.
Counsel for the applicant made no attempt in the course of his submissions to elucidate the questions which would be argued on the hearing of the proposed appeal. He did no more than refer to a draft notice of appeal which he handed to the Court. The draft notice of appeal is hardly illuminating. In relation to the question of liability, it does no more than assert that there was no evidence to support a number of the findings made by Higgins J. and that the finding of negligence was against the weight of evidence. It further asserts that Higgins J. erred in law in finding that the respondent was not guilty of contributory negligence and that such finding was against the weight of the evidence. The amounts awarded for general damages and for past and future wage loss are asserted to be excessive.
Counsel for the respondent opposed the application on a number of grounds. He submitted that the application should be refused on the simple ground that there had not been compliance by the applicant with the requirements of Order 52, sub-rule 15(6) of the Federal Court Rules. He further submitted that the material relied upon by the applicant did not establish the "special reasons" which the rules require an applicant to show in order to obtain the indulgence of an extension of time. He also referred to the prejudice which the respondent's affidavit showed that he would suffer in the event of an extension of time being granted and pointed to the fact that the respondent had not approached his bankers for the provision of an overdraft facility until he had satisfied himself that no appeal had been instituted within the prescribed time. In this connection, the failure of the solicitors for the applicant to inform the solicitors for the respondent prior to 9 November 1990 of the applicant's intention to apply for an extension of time to file a notice of appeal assumes grater significance than it might otherwise have done. As appears from his affidavit, the respondent did not himself become aware that an application had been made for an extension of time until 13 November 1990.
A Full Court of this Court, in Jess v. Scott (1986) 12 FCR 187, gave consideration to the matters necessary to establish the existence of the "special reasons" of which Order 52, sub-rule 15(2) speaks. The Court accepted the cases as establishing "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, and not simply upon the application of any verbal formula" (see the report at p 188). At p 195 the Court said:
"What is needed to justify an extension of time is indicated in r 15(2) by the words 'for special reasons'. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this. ...
It should not be overlooked that r 15(2) enables leave to be given 'at any time'; the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. 'Special reasons' must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."
The circumstances in which this application is made and to which reference has been made also make apposite the statement of Jenkinson J. in Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 at p 116:
"If, as judicial observations quoted in Jess v. Scott suggest, the exercise of powers such as that conferred by O 52 r 15(2) is to be guided by regard to what justice between the parties requires, the failure of the party seeking exercise of the power to reveal the relevant circumstances makes it difficult for the court to see what it is that justice requires, and tends to weaken the case which the applicant for the exercise of the power seeks to make."
I also agree with the view expressed by Jenkinson J. in that case (see the report at p 117) that "the principal considerations in the exercise of a discretion of this kind are those which serve the interests of justice between the parties".
A combination of the factors to which I have already adverted concerning the deficiencies in the application made to the Court and the situation of prejudice in which the respondent has been placed by reason of what has occurred, I am satisfied that the requirements of justice as between the parties dictate that the applicant should not be granted in toto the extension of time which it seeks. In particular, the paucity of the material placed before the Court to show that there is a seriously arguable question as to the liability of the applicant for the injuries suffered by the respondent and the prejudice to which the respondent can properly point have led me to conclude that an extension of time should not be granted in order to allow the question of liability to be further litigated.
The situation seems to me to be somewhat different in relation to the question of quantum of damages. The question of prejudice arising from the grant of an extension of time in relation to an appeal on quantum loses most, if not all, of its significance when one has regard to the nature of the injuries suffered by the respondent and the amount of the overdraft facility which the respondent has negotiated ($32,000). There remains, however, the question whether the applicant has shown sufficient by way of "special reasons" to justify the Court exercising its discretion in its favour. In my opinion the case is a borderline one but, on balance, I have concluded that it would be proper to allow the question of quantum to go to a Full Court.
I, therefore, order, in terms of Order 52, sub-rule 15(2) of the Federal Court Rules, that the applicant have leave to file and serve not later than 11 January 1991 a notice of appeal from the judgment of the Supreme Court of the Australian Capital Territory given on 20 September 1990, such appeal being limited to the quantum of damages properly payable by the applicant to the respondent. I further order that the applicant pay the respondent's costs of the application.
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