Citation : WILLOUGHBY & ORS -v- CLAYTON UTZ [2005] WASC 47

Practice and procedure - Application for extension of time in which to enter appeal for hearing - No arguable prospect of success of appeal - Turns on own facts

Bankruptcy Act 1966 (Cth), s 178

Application for extension of time within which to appeal refused

Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323

Bride v Peat Marwick Mitchell [1989] WAR 383

Bride v The Australian Bank, unreported; FCt SCt of WA; Library No 960565; 25 September 1996

Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178

Edward James Bride as trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116

Francis v National Mutual Life Association of Australasia Ltd [1999] 2 Qd R 355

Girando v Girando (1997) 18 WAR 450

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173

Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47

Willoughby v Clayton Utz [2005] WASC 47; (2005) 193 FLR 373

Adsett v Berlouis [1992] FCA 368; (1992) 37 FCR 201

ANZ Banking Group Ltd v Capper [2001] NSWSC 946

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch v Bell­A­Bike Rottnest Pty Ltd [2005] WASCA 157

Baldry v Jackson [1976] 2 NSWLR 415

Blacker v National Australia Bank Ltd [2001] FCA 987

Christie v Harvey (1900) 2 WALR 146

Cockerill v Westpac Banking Corporation, unreported; Fed Ct of Australia; 9 March 1992

Crackenback Investments Pty Ltd v Wywsik, unreported; SCt of NSW; 25 August 1983

Cummings v Claremont Petroleum NL (1996) 185 CLR 124

Draney v Barry [2002] 1 Qd R 145

Edward James Bride as Trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Fingleton v The Queen [2005] HCA 34; (2005) 79 ALJR 1250

Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Gargan v The Official Trustee in Bankruptcy, unreported; FCt Fed Ct of Australia; 4 November 1995

Girando v Girando (1997) 18 WAR 450

In re Brogden; Billing v Brogden (1888) 38 ChD 546

In re Chirnside, Digby v Union Trustee Co of Australia Ltd [1929] VLR 217

Lidden v Composite Buyers Ltd (1996) 67 FLR 560

Lucas v Public Transport Corporation Victoria [2000] VSCA 35

Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210

Metwally v University of Woollongong (1985) 59 ALJR 481

Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; 18 July 1998

Ramsay v Hartley [1977] 1 WLR 686

Re Bankrupt Estate of Cirillo; Ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576

Re Nguyen; Ex parte Official Trustee in Bankruptcy [1992] FCA 150; (1992) 35 FCR 320

Re Turner; Ex parte Mulley, unreported; Fed Ct of Australia; 22 June 1995

Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

Weddell v JA Pearce & Mayor (a firm) [1988] Ch 26

Wigan v Edwards (1973) 47 ALJR 586

Willoughby v Clayton Utz [2003] FCA 120

Willoughby v Official Trustee in Bankruptcy (WA) [2000] FCA 757; (2000) 102 FCR 261

Willoughby v Official Trustee in Bankruptcy [1999] FCA 1715

Willoughby v Official Trustee in Bankruptcy [2001] FCA 1345

Willoughby v Official Trustee in Bankruptcy [2001] FCA 753

1 STEYTLER P: I have had the advantage of reading, in draft, the judgment of Wheeler JA. I agree with her, for the reasons that she has given, that the explanation for the substantial delay in filing a notice of appeal is less than compelling. However, even in such a case, it is necessary for this Court, in considering whether to grant an extension of time, to take into account, along with other relevant factors, the prospect of the applicant succeeding in the appeal: Girando v Girando (1997) 18 WAR 450 at 454, per Malcolm CJ (with whom Kennedy and Franklin JJ agreed) and Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 522, per Brennan CJ and McHugh J. In this case the appellants have had a full opportunity to put their case in support of the proposed appeal. Having considered it, I am satisfied, essentially for the reasons given by Wheeler JA, that the appellants' case is unlikely to succeed. In that circumstance, and given the other circumstances to which Wheeler JA has referred (in particular the length of the delay and the absence of any satisfactory explanation for it), I agree with her that the extension of time sought by the appellants should be refused.

2 WHEELER JA: This is an application for an extension of time within which to appeal and (if the extension of time is granted) an appeal, against a decision of Master Newnes dated 30 March 2005 (Willoughby v Clayton Utz [2005] WASC 47; (2005) 193 FLR 373). The Master struck out a statement of claim, refused leave to amend and dismissed the action. I turn to extension of time issues first.

3 The last date for appealing was 20 April 2005. The notice of appeal was filed 16 August 2005, almost four months out of time. Before Master Newnes, the second-named appellant appeared in person, while the first and third-named appellants did not appear. It seems from the affidavit of the second-named appellant, sworn in support of the application for an extension of time, that he is under the impression that he appeared on behalf of all appellants at the hearing of the application. Nothing turns on the question of appearance in any event, since there is nothing to suggest that either the first or third-named appellants were unaware of the proceedings, or would have conducted them differently on their own behalf had they appeared.

4 There are two affidavits sworn in support of the extension of time, they being that of Mr Kimball, a solicitor in Queensland, and that of the second-named appellant. They are relevantly in identical terms, even to the extent of each mistakenly referring to "paragraph 15" of the

second-named appellant's affidavit, when it appears that par 19 is meant (Kimball affidavit par 12, Willoughby affidavit par 20).

5 The gist of the affidavits is that, while the appellants have been self-represented for a good deal of the time, Mr Kimball has, from time to time, provided assistance to them. Following Master Newnes' decision, Mr Kimball advised the appellants on the options available to them. The substance of his advice is set out. It is to the effect that an appeal was an option available to them, but might take years to be resolved, and that fresh proceedings would be a "more expedient" method of proceeding. The appellants did then issue fresh proceedings.

6 In July 2005, after the time for appealing had passed, the respondent brought an application for summary judgment, or to strike out the fresh proceedings. The appellants sought advice on that application from Senior Counsel. In the course of that advice, Senior Counsel advised that he considered that the decision of Master Newnes was incorrect and should be appealed. That advice may be no different from Mr Kimball's advice that appeal was "an option"; if there is a difference, it can only be of degree. He also considered that there was a risk that if there were no appeal, the fresh proceedings could suffer the same fate as the original proceedings, and be struck out.

7 It is to be noted that it is not suggested that Mr Kimball's original advice was negligently given, or overlooked any important matter. It is simply that the appellants now have different advice and would prefer to follow that. They have changed their minds, for what appears to them to be good reason.

8 This is not a promising basis upon which to seek an extension of time. To grant the application for an extension of time is to put at risk the vested right of the respondent in the judgment which has been given: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 per Brennan CJ and McHugh J at [4]. If a party's fresh advice or change of mind were good reason to extend time, there would be little point in having time limits at all. In my view, the public interest in finality in litigation dictates that, in the absence of some disadvantage (such perhaps as an appellant being unrepresented and unaware of his rights), or other special or unusual circumstances (such as an advising solicitor making a simple, but important, mistake of fact, as can happen from time to time), it is not possible to regard a desire to act upon fresh advice as a justification for any significant extension of time. I would regard the extension sought in the present case as "significant".

9 In my view, the extension of time should be refused on that basis. In the alternative however, assuming that demonstration of clear error on the part of the Master might justify an extension of time even in circumstances such as the present, I turn to consider the merits of the appeal.

10 There does not seem to be any dispute about the factual background. It is set out at [1] to [28] inclusive of the Master's reasons. Briefly, the chronology was as follows. In 1990, the appellants and two companies associated with them brought proceedings in the Federal Court against Esanda Finance Ltd ("Esanda"), claiming that the appellants and the companies had been induced to purchase an hotel by misleading and deceptive conduct on the part of Esanda. Judgment was delivered by French J on 18 September 1990, dismissing the appellants' claim and entering judgment for Esanda on a cross-claim.

11 In December 1990, sequestration orders were made against the estates of all three of the present appellants. The appellants sought to appeal French J's decision and, by deed dated 9 February 1991, the Official Trustee in bankruptcy assigned to them the right to appeal against the judgment and (subject to certain payments to creditors) any damages that might be obtained if the appeal was successful. On 25 October 1991, the Full Court of the Federal Court upheld the appeal, and ordered the matter be remitted to French J for determination of final relief.

12 In December 1991, the appellants consulted the respondent firm of solicitors, retaining it to act, among other things, in relation to the determination of final relief. In 1993, the respondent recommended to the appellants that they should compromise their claims, and a Deed of Release and Discharge was made between the appellants and Esanda in about November 1993. The appellants now allege that the respondent was negligent in relation to that settlement, so it was in or before November 1993 that the cause of action, if any, which the appellants have against the respondent, accrued.

13 The appellants were discharged from bankruptcy in January 1994. The first and second appellants were declared bankrupt for a second time in August and November 1997 respectively. It is not clear when they were discharged from that second bankruptcy, although in the ordinary course that would not have been before the effluxion of three years from the date of the filing of their statement of affairs - that is, some time in the latter part of 2000. There is some suggestion in the evidence that they were still undischarged bankrupts in May 2002.

14 In September 1998, the appellants informed the Official Trustee that they intended to issue proceedings against the respondent for negligence in relation to the Esanda settlement. In an affidavit, the second-named appellant says that in late 1998 and early 1999, the Official Trustee indicated to the appellants that it would be "in order" for them to issue proceedings against the respondent, and that an assignment of that cause of action to them "would be in order".

15 However, the bankrupt appellants did not wait for an assignment to be effected. The appellants commenced proceedings against the respondent in December 1998. Some time in the early part of 1999, the Official Trustee accepted an offer of $5100 made by LawCover Pty Ltd, the professional indemnity insurer of the respondent, for the rights to that action. A deed made between the Official Trustee and LawCover in April 1999 vested the action and underlying causes of action in LawCover.

16 In June 1999, the bankrupt appellants filed an application in the Federal Court, seeking a review of the Official Trustee's decision to assign the action to LawCover. Nicholson J dismissed it, but, on 8 June 2000, an appeal was upheld and the application for review was remitted to Nicholson J for further hearing. In June 2001, Nicholson J ordered the Official Trustee to assign the action to the bankrupt appellants. After further directions, a deed was entered into between the Official Trustee and the bankrupt appellants in May 2002, transferring that action to the appellants. The action continued in the Federal Court for a time, and was ultimately transferred to this Court.

17 It is clear, then, that the appellants were undischarged bankrupts at the time at which the alleged cause of action accrued. The first and second-named appellants were bankrupt again at the time the proceedings against the respondent were commenced and may have still been undischarged in May 2002.

18 The Master concluded that the causes of action against the respondent were clearly property within the meaning of the Bankruptcy Act 1966 (Cth) and therefore vested in the Official Trustee at the date at which they accrued in November 1993. There is, as I understand it, no challenge to that conclusion. They remained vested in the Official Trustee even after the appellants' discharge from bankruptcy: Bride v Peat Marwick Mitchell [1989] WAR 383 per Malcolm CJ at 393; Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178.

19 The Master concluded that it followed that, when the action was commenced, the causes of action were vested in the Official Trustee and the appellants had no standing to bring the action. The Master cited the two cases just referred to, together with Bride v The Australian Bank, unreported; FCt SCt of WA; Library No 960565; 25 September 1996 for that proposition. Moreover, as at that date, the first two appellants were, in any event, once again undischarged bankrupts.

20 The Master considered that the position was not altered by the May 2002 deed, since it was not until the causes of action were assigned to the appellants that they were entitled to proceed against the respondent. While the deed effected an assignment of the causes of action, the Master held that it did not purport to do so retrospectively. By the terms of the deed, the assignment was effected when each of the bankrupt appellants paid the sum of $100 to the Official Trustee and therefore, at the earliest, could have been effected as at 29 May 2002. Following Bride v The Australia Bank, and also Edward James Bride as trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116 per Ipp J at [17], the Master concluded that the action by the three appellants, when brought, was brought by plaintiffs who had no cause of action, and that the assignment to them of the causes of action some years later could not retrospectively validate that action.

21 The Master further went on to observe that, following Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47, the causes of action could not, in any event, have been assigned to the first and second-named appellants prior to their discharge from their 1997 bankruptcy, whenever that may have been. For reasons which will appear, it is not necessary to deal with this question.

22 The grounds of appeal do not identify with precision how it was that the Master was alleged to have erred. Ground 1 simply sets out the Master's conclusions, described above, and asserts that they are errors in law and in fact. Ground 2 asserts two distinct sorts of error. Paragraph (a) asserts that the causes of action were "properly assigned" to the appellants by the Official Trustee, but omits to refer to the critical issue of the date upon which the appellants assert that the assignment took place. Paragraph (b) asserts that the appellants had, at all times, standing to issue the proceedings. There are said to be three bases for this proposition. The first relies upon a decision of the Court of Appeal in Queensland. The other two are linked.

23 The linked assertions are that a finding that the action was a "nullity" would result in a gross injustice to the appellants and that a bankrupt is a "beneficiary" with similar rights to those granted by the law relating to trusts; it is asserted that, therefore, a bankrupt may issue proceedings when other parties will not, or cannot, do so in order to protect the interests of the bankrupt. A good deal of the written submissions seem to be concerned with these last two linked propositions. There seem to me to be two difficulties with them. The first is that the argument advanced in the written submissions about the capacity of the bankrupts to protect their own interests would, if correct, apparently render s 178 of the Bankruptcy Act (which allows the bankrupt to apply to the Court for review of decisions affecting the bankrupt) otiose. The second difficulty is that there is no identification in the argument of how it was that the Official Trustee refused or failed to protect the interests of the appellants.

24 In any event, the second and third limbs of par 2(b) of the grounds of appeal appear not to have been pursued. In oral argument, counsel for the appellants accepted that there were only three possible bases upon which the appeal could succeed. One would be if there was an actual assignment of the cause of action as at the date of issue of the proceedings, which there clearly was not. Another would be if there was an equitable assignment of the cause of action as at the date of issue of the proceedings. The third would be if the rules of court enabled the appellants to amend their action so as to continue it, notwithstanding that the cause of action arose only after they had commenced proceedings.

25 The written submissions of the appellants did not deal at all with the issue of equitable assignment. That question seems to have been pursued orally, only because it was a possibility suggested to the appellants' counsel during the course of an exchange with the Bench. In the end, it seems to me that this question was not really pressed at all. The appellants' counsel was under the impression that, because of the size of the action, it would have been necessary for the Official Trustee to call tenders before assigning it. Counsel said that it was his recollection that there is "a limit in the Act on what a trustee can assign or sell without calling tenders ... ". If there was an obligation to call for tenders, there could be no equitable assignment, since the Official Trustee would have no power to assign without satisfying that precondition. There does not seem from my researches to be an express requirement in the Act of the kind to which the appellants' counsel referred, nor can I find any in the Regulations, although it should be noted that I have searched them both in current form, not as they may have been at any relevant earlier date. This submission was simply left hanging.

26 In any event, there are two further difficulties with the concept of equitable assignment. The first is that it appears to me that merely asserting that it "would be in order" for the cause of action to be assigned to the appellants is a very different thing from actually agreeing to assign it to them, or promising to do so on some condition, or anything of that kind. No argument was addressed to the question of how an assertion that it "would be in order" for an assignment to be made in the future, could translate into an equitable assignment at the time at which the assertion was made. Nor does the assertion that the Official Trustee had said that it would be "in order" for the appellants to issue proceedings assist, for much the same reasons.

27 The other difficulty is that the second-named appellant's assertion in his affidavit is that the Official Trustee said both that it would be "in order" for the appellants to issue proceedings, and that an assignment of the cause of action to them "would be in order". There is an obvious inconsistency between those two statements, which at once casts doubt on the assertion that the Official Trustee said either or both of them. That is because if it were "in order" for the appellants to issue the proceedings in their own name, then it would not be necessary for the cause of action to be assigned to them.

28 The equitable assignment issue does not seem to have been argued before the Master. We were not taken to the facts said to ground the alleged equitable assignment, save in the very general way that I have mentioned. No argument was addressed to the proposition that the statements referred to above, or either of them, could somehow constitute an equitable assignment. Finally, since that question was not canvassed in either the grounds of appeal or the written submissions, the respondent had no notice of it and was not in a position to deal with it.

29 In my view, for the reasons given above, I would not regard the question of whether the Official Trustee gave an equitable assignment of the cause of action to the appellants at some time prior to their issuing of the proceedings, as a live issue in this appeal. The only live issue in the appeal, then, appears to be that of "amendment" of the proceedings in some way which might enable the appellants to continue with it.

30 The "amendment" ground is based upon the decision of the Queensland Court of Appeal in Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173 ("Stone"). The submission made orally was somewhat confusing, but seems to boil down to this. The only suggestion before the Master that the proceedings should be amended so as to join any parties, consisted of a submission that the present appellants should be joined to an action brought by a Mr Mark Robert Willoughby, who was a proposed fourth plaintiff. The Master held that that proposed plaintiff had no cause of action, and there is no appeal brought from that decision. The Master, therefore, correctly held that the three appellants could not be joined to his action, there being no action to which they could be joined. It was not suggested to the Master that any other amendment to join a party should be made. However, relying upon Stone, it is now suggested that the Master was in error in failing to suggest to the appellants that they might make an application to amend the statement of claim to join a party pursuant to O 18 r 6 of the Rules of the Supreme Court 1971 (WA). The first difficulty with the ground of appeal, then, is that it asserts that the Master was in error in failing to grant relief which the appellants did not seek.

31 The second difficulty is that it is not clear quite who it was that the appellants say should have been joined. The appellants themselves were already plaintiffs, although improperly so. It seemed for a time that the appellants' counsel was suggesting that they could have sought to have had themselves joined to the proceedings. However, in the end the proposition enunciated was that, as in Stone, the Master should have suggested that the appellants seek to join the Official Trustee as plaintiff.

32 A problem with raising that issue on the appeal is that it would require the trustee's consent for him to be joined as a plaintiff (O18 r 6(2)). In any event, if the Official Trustee were joined, the joinder of the party takes effect from the date on which the party is joined: Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 at [5] per Murray J, [26] per McLure J. By that point, the limitation period had expired. Further, if the proceedings were not validly instituted to start with, then it is difficult to see how the joinder of a party to those proceedings, which took effect only from the time of joinder, could be effected so as to "validate" them. Further, there would be no point in joining the Official Trustee to proceedings in relation to a cause of action which the Official Trustee had assigned to others at a time prior to the date of his joinder, since he would at the time of joinder have no standing.

33 As a further alternative, it is suggested that if the Official Trustee did not consent to be joined as plaintiff, he could be joined as a defendant. Apart from the difficulties already referred to about the timing of the joinder, that course would still not result in there being any plaintiffs having standing to bring the action, and so would not assist the appellants.

34 The various difficulties which I have referred to above were raised during the course of the oral argument, but not really dealt with, perhaps because the appellants did not make it clear until their reply precisely what sort of amendment to the pleadings, or what sort of joinder, was contemplated. The oral argument focused instead on the reasoning in the decision in Stone. I do not think it is necessary to canvass that decision in any detail. The leading judgment of McMurdo J makes it clear, at [27] and [28], that an important foundation for the conclusion reached in that case was the availability of r 375 and r 376 of the Uniform Civil Procedure Rules 1999 (Qld). Rule 375(2) has no equivalent in the Rules of the Supreme Court 1971 (WA). It echoes s 81 of the Supreme Court of Queensland Act 1991 which relevantly provides:

"81 Amendment for new cause of action or party

...

(2) The court may ... grant leave to a party to make an amendment, even though -

(a) the amendment will include or substitute a cause of action or add a new party; or

(b) the cause of action included or substituted arose after the proceeding was started; or

(c) a relevant period of limitation, current when the proceeding was started, has ended."

That has no equivalent in the Supreme Court Act 1935 (WA).

35 It was because of the existence of rr 375 and 376 that McMurdo J was able to distinguish the earlier Queensland case of Francis v National Mutual Life Association of Australasia Ltd [1999] 2 Qd R 355, in which Ambrose J had taken the view that O 32 of the former Rules of the Supreme Court (Qld) did not permit a plaintiff to amend in order to rely upon an assignment which post-dated the commencement of the suit.

36 In Western Australia, there is binding authority to the effect that, where a cause of action is vested in a trustee in bankruptcy, a writ issued by the bankrupt in his or her personal capacity (in the absence of a valid assignment of the cause of action) is liable to be set aside because the appellants have no standing. That is Bride v The Australian Bank (supra). In that case, the cause of action arose prior to the bankruptcy of the Brides. The Brides were then made bankrupt. They were later discharged from bankruptcy, and later still they commenced proceedings. Some years after the commencement of proceedings, the trustee in bankruptcy assigned the cause of action to them. They sought, in effect, to have themselves "joined" to the action already commenced. Heenan J, with whom Franklyn and Wallwork JJ concurred, said at page 10, in the passage quoted by the Master in this case at [27] of his reasons:

"The plain, inescapable fact is that at the date of issue of each of the writs they [the plaintiff/appellants] were not entitled to bring the present actions in their personal capacity. As the deed of assignment has no retrospective effect, the writs, if issued by the appellants in their personal capacity would have been set aside because the appellants had no standing to sue. ... Their obtaining of the deed of assignment in January 1995 has not cured that fundamental defect."

(See also Edward James Bride as trustee of the Pinwernying Family Trust v Stewart (supra) at [17] per Ipp J, Wallwork and Parker JJ agreeing.)

37 To summarise, the appellants' case is not strong. It is contrary to the authority of two previous decisions of this Court. While the Court can depart from its previous decisions, it will not do so unless convinced the earlier decision was wrong, or that there is some other compelling reason why the previous decision should no longer be followed: Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343. The reason advanced for suggesting that the Court should not follow those decisions is that a different result was arrived at by the Supreme Court of Queensland in Stone, but the statutory context and the rules of court are different in that State.

38 Further, the appellants suggest that the Court should depart from those decisions in order to grant to the appellants (or perhaps in order that a Master to whom the matter might ultimately be remitted could grant to

the appellants) relief, in terms which are not yet formulated, which relief was not sought before the Master whose decision the appellants seek to appeal. Alternatively, the appellants seek to raise, in a somewhat perfunctory way, an argument relating to an equitable assignment of the cause of action to them, which argument they have not seen fit to support by reference to either principle or authority, and which argument does not feature in either the grounds of appeal or the written submissions in support of them.

39 I would refuse the extension of time sought by the appellants.

40 PULLIN JA: It is clear that over the years the appellants have shown a determination to pursue their claim against the respondent. However, the actions necessary to pursue the claim through to trial have taken too long. The delay is partly explained by periods in which the appellant suffered financial difficulty and bankruptcy, but is also partly explained by slow decision-making on the part of the appellants. Time limits should always be adhered to, but as the period of time since accrual of a cause of action grows, so a plaintiff is required to be even more attentive to time limits. A defendant faced with a claim is entitled to expect that the claim will not dog them forever.

41 The appellants had a right of appeal against the Master's decision. The Master's decision was made in relation to a cause of action which, on the alleged facts, accrued over 11 years earlier. If the appellants wished to exercise their right of appeal, they were required to do so within the time limited for such an appeal. An application to extend time in which to appeal puts at risk the substantive rights of the respondent.

42 The appellants did not appeal within time. If an extension of time is to be secured, there are four main factors to be considered before the Court will exercise its discretion to extend time. They are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, [5] - [9]. The appellants' explanation for not complying with the time limits is not one which justifies an extension of time. In the circumstances, the delay was substantial. In addition, for the reasons given by Wheeler JA, the appeal does not have reasonable prospects of success.

43 I agree with the reasons of Wheeler JA and agree that the application for an extension of time should be refused.

• Extension of time
• The factual background
• The Master's reasons
• The issues in the appeal
• Conclusion