Totterdell, G. v Nelson, R.l

[1990] FCA 808

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JUDGMENT NO. 8°g/?~.....,.

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	)
GENERAL DIVISION	1	NO WAG78 OF 1990
B E T W E E N :	GEOFFREY FRANK TOTTERDELL The Trustee of the Property of ROBERT LESLIE NELSON

Appellant

and

ROBERT LESLIE NELSON

Respondent

CORAM: LEE J.

DATE : 6 AUGUST 1990

EX TEMPORE REASONS FOR JUDGMENT

I thank counsel for their submissions. The question
of what should be done with the application involves a

consideration of what is provided in the Rules of the Federal

Court. Order 52 sub-r.15(2) states as follows - sub-r.l5(1)

having set out the time limits for the lodgment of of a notice

of appeal :

"Notwithstanding anything in

the preceding sub-rule, the

Court or a Judge for special	I1 MAR 1991
reasons may at any time give	FEDEAAL COURT OF
leave to file and serve a	AUSTRALIA
notice of appeal."

That has been looked at very closely and carefully by the Full

Court of this Court in Jess v. (1986) 12 F.C.R. 187

which concluded that the sub-rule provides a discretion to be exercised by the Court or a Judge if the circumstances justify it and that the use of the word "special" should not be read as narrowly confining the exercise of that discretion. However, there should be at least something out of the ordinary which requires the discretion to be exercised to keep alive rights that would otherwise have been extinguished by the operation of sub-r.(l).

Therefore, there is an obligation on an applicant for the granting of leave to file a notice of appeal to show that there are grounds for the exercise of such a discretion. There should be some explanation of the failure to file a notice of appeal within the time allowed, by sub-r. l5(1), the onus of that obligation increasing with the length of the delay. The greater the delay the more cogent should be the reason advanced as to why leave should be granted. Where only one day is involved, such inadvertence may speak for itself in circumstances which show that the application is not a mere

afterthought or a tactical measure.

In the present case, not much has been deposed to

about the delay. There is a bare statement that the filing of

a notice of appeal was overlooked - overlooked in the sense

that it was understood that the period provided for filing a notice of appeal was 28 days and not 21. That is not directly stated by the party who gave the instructions for the appeal, but the instructed solicitor has deposed that such instructions were received.

Looking at the notice of appeal and hearing the arguments in support of it, it can be said that it would not be a frivolous appeal, that it would be pursued with belief in its merit. There is no reason to form any view that the application is made merely for tactical reasons or to doubt the explanation of the delay.

On the other hand, it must be remembered that the intended appeal relates to the exercise of a discretion by his Honour and such decisions will not be lightly set aside on appeal. The Bankru~tv Act 1966 required the discretion to be exercised with regard to certain criteria and the notice of appeal raises several interesting questions as to whether the statutory requirements were observed and whether errors of law vitiated the manner of exercise of the discretion.

In particular, the appeal would involve consideration of the operation of rr.51A and 141A of the Bankruptcy Rules and of sub-ss.149(8) and (12) of the Bankru~tcv Act 1966. They are matters that warrant the attention of a Full Court and other judges may be assisted by any determination the Full Court may make.

I think this is a case, having regard to m v. Scott, where the extra days that have run do not in themselves vieit any prejudice on the former bankrupt. There may be prejudice involved if the appeal succeeded and his Honour's orders were set aside, but such prejudice would not be a consequence of the delay in lodging a notice of appeal.

As discussed in Jess v. Scott, it may be appropriate to see whether an alternative procedure is available to the applicant instead of the appeal process. It may be suggested that s.152 of the Bankru~tv Act provides adequate recourse for the applicant trustee, but the powers provided are more limited than would flow from the outcome of a successful appeal. Section 152 is qualified in its operation by certain circumstances and conditions and it cannot be regarded as an equivalent to the relief available in an appeal to this Court which may otherwise make an exercise of discretion to grant leave to appeal unnecessary or inappropriate.

have set them out you will note that I have not thought it of Having had regard to all of these matters - and as I	great moment whether the further evidence provisions of the
Rules of the Federal Court in respect of appeals provide any
weight to the application - and to the totality of the
surrounding circumstances, I have determined that I should exercise my discretion to grant an extension of time to appeal
in this matter to 21 June 1990, being the date on which the Registry received and filed the notice of appeal. Such an order should be sufficient to validate the notice of appeal filed.
The order will be that subject to the revision of the heading and title of the notice of appeal filed in the Court on 21 June 1990 that there be an extension of time until that date for the filing of the notice and that the notice so filed be received as the notice of appeal in the matter and the appeal proceed normally thereafter.
As to the matter of costs, this application would not have been necessary if the Rules had been complied with. It was appropriate for the respondent to the application to state its opposition to it and present its argument. Irrespective of the outcome of the appeal, the respondent should have the costs of the application.

I certify that the preceding

five ( 5 ) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Associate:

Date :  6 4 J G J S ~ I q s C

Counsel for the Applicant: Mr N. Gentilli

Solicitors for the Applicant: Jackson McDonald

Counsel for the Respondent: Mr P.G. McGowan

Solicitors for the Respondent: Phillips Fox

Date of Hearing:  6 August 1990

Date of Judgment: 6 August 1990