Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; (1990) 64 ALJR 458 (28 June 1990)

HIGH COURT OF AUSTRALIA

KATHLEEN GALLO v. THE HONOURABLE JUSTICE DAWSON
S. 90/001

High Court of Australia
McHugh J.(1)

CATCHWORDS

HEARING

Canberra
28:6:1990

DECISION

McHUGH J. This is a summons, dated 19 March 1990, for an extension of time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of this Court. The action was brought by Kathleen Gallo ("the applicant") against the respondent who is a Justice of this Court. The order was made by Wilson J. on 19 October 1988. In her action, the applicant claimed damages against the respondent "in consequence of bias". Wilson J. upheld the contention of the respondent that the action was "fatally flawed" because the applicant's affidavit had made it clear that the conduct alleged was undertaken in the performance of the respondent's judicial duties and that there was no suggestion that he lacked jurisdiction to perform the acts alleged against him. In addition, Wilson J. said that, on the material before the Court, "there is no justification whatever for the (applicant's) apprehension of bias".

2. The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O.70, r.3 of the Rules of the High Court ("the Rules"). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O.60, r.6 to support her application. That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance 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 Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 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 Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
"The rules of court must prima facie be obeyed, and in
order to justify a court in extending the time during which
some step in procedure requires to be taken there must
be some material upon which the court can exercise its
discretion."
3. In the present case, the applicant sought to explain her delay in seeking an extension 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 professional". This claim was made without furnishing any details as to the time spent in research or the nature of the research upon which the applicant was engaged or when it was 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-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal. I doubt that I would have considered the applicant's explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes, McInerney J. pointed out (at p 263) that one object of fixing time under court rules is "to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations". When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". It would make a mockery of O.70, r.3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege. Since I am firmly 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.

4. In her affidavit in support of her application, the applicant declared her intention to amend her claim "by substituting for paragraph 1 - 'Damages for personal and financial loss suffered' - to 'Set aside the Order made on 24 May 1985 in the Special Leave Application of No M63 of 1984; Kathleen Gallo v. The Honourable Attorney General.'" Thus, it is apparent that, in her proposed appeal, the applicant would seek to reinstate her action so that she could seek an order to set aside an order made in another action. The respondent was not a party to that action, and the Attorney-General, who was, is not and could not be a party to the action which the applicant has brought against the respondent in this Court. No order to set aside the order in the applicant's action against the Attorney- General could be made in her action against the present respondent. No order or finding in her action against the present respondent would have any legal effect in her action against the Attorney-General. The proposed amendment, therefore, is futile. Moreover, the proposed amendment could not overcome the effect of the findings of Wilson J. that the conduct alleged was performed in the course of the respondent's judicial duties and that there was no justification for the applicant's apprehension of bias. It would be a waste of time, money and court resources to extend the time for appealing to enable the applicant to seek the relief which she proposes in her amended claim.

5. The order made by Wilson J., based as it was on principles of judicial immunity almost 400 years old, was unquestionably correct. An appeal against it would have had no prospect of success. Likewise, an appeal based on the amendment proposed by the applicant would have no prospect of success. Accordingly, I refuse the application to extend the time for appealing against the order made by Wilson J. on 19 October 1988.

6. The summons dated 19 March 1990 is dismissed with costs.

7. Certificate for counsel.

ORDER

Summons dismissed with costs.

Certify for counsel.