John William Ebsworth v the Commonwealth of Australia [1986] ACTSC 109 (4 December 1986)

SUPREME COURT OF THE ACT

JOHN WILLIAM EBSWORTH v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1304 of 1984
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Practice and Procedure - Application to fix a date for filing and serving notice of appeal - application made after time for appeal expired - necessity to show special reasons.

Federal Court Rules, Order 52, rule 15.

Hoar v. The Queen (1982) 40 ALR 189

Walker v. McKinley (1885) 11 VLR 366

Fitzgerald v. Trustees Executors and Agencies Co Limited (1892) 18 VLR 521

Grey v. Park, unreported decision of ACT Supreme Court, 30 September 1985

Grey v. Park, unreported decision of Federal Court, 14 October 1985 (No. ACT G.56 of 1985)

HEARING

CANBERRA
4:12:1986

ORDER

The motion be dismissed.

DECISION

By notice of motion dated and filed on 4 November 1986 the applicant, who was the plaintiff in an action for damages for personal injuries, has applied for "leave for an extension of time in which to lodge an appeal, such notice of appeal to be filed on or before 14 November 1986" and for such further order or orders as the court deems meet.

2. On 26 September 1986 I dismissed the applicant's action for damages, entered judgment for the defendant in the action (the present respondent) and published my reasons. Time for filing and serving notice of appeal to the Federal Court of Australia expired on 17 October 1986.

3. The present application is brought pursuant to 0.52, r.15(1)(a)(iii) of the Federal Court Rules. As the language of 0.52, r.15 is crucial to the application I set out the relevant parts of 0.52, r.15 in full:

"15.(1) The notice of appeal shall be filed and

served -

(a) within 21 days after -

(i) the date when the judgment appealed from was
pronounced;

(ii) the date when leave to appeal was granted;
or

(iii) any later date fixed for that purpose by the
court appealed from; or

(b) within such further time as is allowed by the
Court or a Judge upon application made by motion
upon notice filed within the period of 21 days
referred to in the last preceding paragraph.

(2) 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.
. . ."

4. Notwithstanding the terms of the notice of motion, counsel for the applicant made it clear during the course of the hearing of the application that what the applicant was really seeking was an order fixing a date within 21 days of which an appeal may be filed and served pursuant to 0.52, r.15(1)(a)(iii).

5. The undisputed facts giving rise to the application are set out in the affidavit of the plaintiff's solicitor, Ernest David Lardner, sworn 3 November 1986. After the judgment had been given and written reasons published on 26 September 1986, advice was sought from Mr Richardson of counsel whether or not there were grounds on which an appeal could be prosecuted. Some days later, the precise date is not clear from the terms of the affidavit, counsel indicated that he had consulted Mr B. Sully of Queen's Counsel regarding the possibility of an appeal and counsel's advice was that an appeal should be lodged, subject to perusal of the transcript. Appropriate instructions were received from the applicant on 14 October 1986, which was still within time for filing and serving a notice of appeal to the Federal Court.

6. A copy of the transcript of the trial was ordered on 17 October 1986 and apparently an indication was given that it would be at least two weeks before the transcript became available. It is to be noted that the copy of the transcript was not ordered until the last day for filing and serving notice of appeal within time and, on receipt of that indication that the transcript would not be available for at least another two weeks, no application of the present type, nor any application to the Federal Court pursuant to 0.52, r.15(2), was instituted. In fact the transcript did not become available until 4 November 1986, the same date upon which the notice of motion was filed, served and made returnable.

7. On 4 November 1986 the application came on for hearing and on the application of the respondent was adjourned for hearing on 7 November 1986. The further explanations for failing to file and serve any notice of appeal or to make any application to this court for a later date to be fixed for that purpose, as contained in Mr Lardner's affidavit, are that he was absent from his office from 22-27 October 1986 and, because of the unavailability of counsel, was not able to speak to Mr Richardson of counsel about the matter until 31 October 1986. Furthermore, he was under the mistaken belief at all times that the applicant had 28 days in which to file and serve a notice of appeal to the Federal Court. None of those facts was in any way disputed by the respondent.

8. It was submitted on behalf of the applicant that in the exercise of its discretion this court should find that sufficient grounds had been established for fixing a later date than 17 October 1986 for the purpose of filing and serving notice of appeal to the Federal Court. The date suggested was the date upon which an order was made in respect of the present application or some appropriate earlier date.

9. The application was opposed by the respondent. It was submitted that this court having delivered its judgment and published its reasons, it is functus officio and now does not have the power to make an order under 0.52, r.15(1)(a)(iii). In support of that submission counsel relied upon Hoar v. The Queen (1982) 40 ALR 189. That was a case in which Toohey J., as a single judge of the Federal Court of Australia, entertained an application for an extension of time within which to file and serve a notice of appeal to that court pursuant to 0.52, r.15(2). His Honour held that, under the terms of 0.52, r.15(2) prior to their amendment into their present form, the application had to be heard by a Full Court of the Federal Court. It appears, however, that his Honour gave leave to the applicant in the matter to file a motion in similar terms to that already lodged but as an application to the Supreme Court of the Northern Territory. That step was taken by the applicant in that case so that the application became an application made pursuant to 0.52, r.15(1)(a)(iii). Before refusing the application Toohey J. observed that the key to r.15(1)(a)(iii) is the expression "fixed for that purpose". He went on to say:

"Although the 21 days in which a notice of appeal must
be filed and served ordinarily runs from the date when
the judgment appealed from was pronounced or when leave
to appeal was granted, the court pronouncing judgment
or granting leave to appeal may think it appropriate to
fix as the date of judgment or grant of leave some
later date. A not uncommon situation is one in which a
court has delivered reasons of some length and
complexity and wishes the parties to have a reasonable
time in which to assess their positions. (See for
instance Henderson v. F.C. of T. [1969] HCA 14; (1970) 119 CLR 612 per
Windeyer J. at 641-2.)"

10. With respect, I agree with those observations by Toohey J. His Honour went on to say that, however widely r.15(1)(a)(iii) is read, he was unable to regard it as authority for a judge, in the situation before him that day, to fix a notional date for the applicant's convictions in order to permit a time that had already expired to run again for the purpose of enable notice of appeal against the convictions to be filed and served. His Honour did not make clear to what he was referring in relation to the situation before him. It may be that his Honour was not attempting to restrict in any way the operation of r.15(1)(a)(iii).

11. In any event, I am of the opinion that r.15(1)(a)(iii) is sufficiently broad in terms to permit the court appealed from to fix a later date for the purpose of filing and serving notice of appeal, notwithstanding that the ordinary period of 21 days from judgment has expired. However, the fact that the period has expired is an additional matter which the court appealed from should take into account in the exercise of the discretion conferred upon it by r.15(1)(a)(iii). Fixing a date later than the 21 days is obviously enlarging the time for filing and serving notice of appeal and, where the time for filing and serving has expired, leave should only be granted under very special circumstances and upon very special grounds (Walker v. McKinley (1885) 11 VLR 366; Fitzgerald v. Trustees Executors and Agencies Co Limited (1892) 18 VLR 521).

12. In the language of the authorities, the present applicant would have to show special reasons or grounds to obtain an order under r.15(1)(a)(iii) from this court. He would have to show that it is either necessary or highly expedient in the interests of the litigation that his application be granted. If, for instance, the present application had been made within the time limit for appeal on the grounds that the transcript was not available until after the time limit had expired, the applicant would have had a strong case for an order under r.15(1)(a)(iii), especially as the respondent has not contended on the hearing of the application that it has suffered any special prejudice by reason of either the applicant's failure to file and serve a notice of appeal within time or his delay in making this application for the fixation of a later date.

13. In my view, the discretion to be exercised by the court appealed from under r.15(1)(a)(iii) should only be exercised favourably to the applicant in circumstances which reflect some peculiar aspect of the litigation in the court appealed from. The unavailability of transcript and Toohey J.'s example of the desirability of giving the parties a reasonable time within which to assess their positions are the sort of situations which more readily call for the exercise of the discretion, especially in the absence of prejudice to the non-consenting party. Another appropriate case for the favourable exercise of the discretion is where judgment is pronounced but reasons for judgment are delivered at a later date, as happened in Grey v. Park, an unreported decision of Miles C.J., on 30 September 1985, referred to by Neaves J. in the Federal Court in his unreported decision of 14 October 1985 (No. A.C.T. G56 of 1985).

14. For these reasons the motion is dismissed. Of course the applicant's right to apply to a Full Court or a judge of the Federal Court pursuant to 0.52, r.15(2) is preserved. I shall hear counsel on the question of costs.