conditions precedent to an appeal being entertained from a decision of a Court of Summary Jurisdiction. These three matters

are: (a) a written notice of appeal within one month of the conviction (section 171(1)); (b) service of the notice of appeal on the respondent within one month of the conviction (section 172(1)); and (c) entry into a recognizance to prosecute the appeal (section 171(1))." 28. (His Honour does not mention "payment of the fee specified in S. 172" (see S. 171(1) but it would seem by parity of reasoning that this too must be a condition precedent). 29. Neither the second nor the third of the conditions referred to by His Honour are complied with in this case. His Honour cites Phillips v Philcox [1923] SAStRp 50; (1923) SASR 550 and Homes v Thorpe [1924] SAStRp 64; (1924) SASR 479. In the first of those authorities Poole J. said: "Now a statute may give a right of appeal simpliciter, or it may give it subject to certain conditions precedent; when this is done those conditions must be fulfilled before the right arises." 30. His Honour Kriewaldt J. concluded: "Failure to comply with these conditions precedent deprives the Supreme Court of jurisdiction unless the power of dispensation under S. 165 can be exercised." 31. I deal first with the necessity to enter into a recognizance. It may well seem incongruous that if the Crown were to appeal on questions of sentence that it should be asked to enter into a recognizance which, essentially, would be a promise by the Crown to itself to prosecute the appeal. So, to a lesser degree, would it seem surprising that a Government instrumentality such as the Commissioner for Taxation should be required to enter into a recognizance when it is an appellant to an appeal under the Justices Act. There is, however, no provision that I can find in S. 167 or anywhere else in the Act which excepts the Crown or a Government instrumentality from the requirement of entering into a recognizance. 32. I did, at first, consider that the matter was dealt with by S. 167(6) which provides that, "Where the court so orders no recognizance on appeal shall be entered into", and that it might therefore be possible either to remit the matter to the "Court" (which in this context I take to be the Court of Summary Jurisdiction) to consider whether it should so order; or, possibly, to act under S. 177(2)(e) and make such order myself; though I have grave doubts as to whether such an order is within the ambit of that sub-section. However on further reflection it seems to me that S. 167(6) is only referable to S. 167(5) which provides that if a complaint not being a complaint for any offence is dismissed the Court may order that if the decision is appealed no recognizance shall be entered into. S. 167(6) then follows this with the words, "If the Court so orders no recognizance on appeal shall be entered into". 33. Incongruous as it may seem therefore, it does appear that the Commissioner of Taxation must enter into a form of recognizance or payment pursuant to S. 167(7). The Commissioner must come within the category of "a person appealing against the conviction or order" within the meaning of S. 167(7), for he is a "party" who appeals to the Supreme Court from an "order" of the Court "on a ground which involves sentence" within the meaning of S. 163 which gives him the right to appeal. I do not see that I can act as Kriewaldt J. did in Lawrie v Stokes (supra) and dispense with the recognizance. That power only arises if some form of recognizance has previously been entered into

• see S. 169. That was the case in Lawrie v Stokes but is not the case here. It seems to me therefore that this condition precedent has not been complied with; nor possibly has the condition precedent of the payment of the fee specified in Ss. 171(1) and 172(3).

34. The final objection is that the Notice of Appeal was not served within one month of the time of the conviction and sentence. This is not denied and the argument seems to be that because the time had been exceeded only by a short interval the Court should cure the defect. DISPENSING WITH CONDITIONS PRECEDENT
35. I turn therefore to a consideration of whether the failure of the appellant to fulfil these two conditions precedent can be dispensed with in the only way that can be done namely by the application of S. 165 which reads: "POWER OF SUPREME COURT TO DISPENSE WITH CONDITIONS PRECEDENT TO APPEAL WHERE COMPLIANCE IMPRACTICABLE
36. The Supreme Court may dispense with compliance with any condition precedent to the right of appeal, as prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with this Act."
37. Obviously there are many statutes imposing time limits and those statutes usually contain provisions allowing the Courts to extend the times e.g. under Order 63 rule 5 of the Rules of this Supreme Court, the Court or a Judge may enlarge or abridge the time appointed by the Rules "upon such terms (if any) as the justice of the case requires". Acting under those Rules the Court proceeds on the principle stated by Bramwell L.J. in Atwood v Chicester(1878) 3 QBD 722 at 723 that "when irreparable mischief would be done by acceding to a tardy application it being a departure from the ordinary practice the person who has failed to act within the proper time ought to be the sufferer. In other cases the objection of lateness ought not to be listened to and any injury caused by the delay may be compensated for by the payment of costs."

Nevertheless, even accepting the broad powers conveyed by such a principle, it is said that, "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. If the law were otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation." Ratnam v Cumarasamy (1964) 3 All ER 933, at 935 (per Lord Guest). That case was an instance where a broad discretion was given to the Court, ("within such further time as the Court of Appeal may allow"). But there are many instances where the Court's discretion is restricted so that it must decide within narrower boundaries. For example McInerney J. was of the opinion in Hughes v National Trustees [1978] VicRp 27; (1978) VR 257 at 263 that an application for "special leave" imposed "more stringent requirements on an applicant, namely, that there must be something special in the circumstances, e.g. that the case involves an important question of law, or that the question involved in the appeal is one of recurring significance and not one peculiar to the applicant and the respondent." 39. In many cases the limitation is mandatory and not directory. See e.g. Christies Sands Pty Ltd v City of TeaTree Gully (1975) 11 SASR 255. 40. Hence when a court is given a dispensing power it must carefully examine the boundaries within which that dispensing power is given. 41. Under the Justices Act the boundaries within which the court can dispense with a condition precedent to the right of appeal are laid down by S. 165 and the court must be satisfied that the appellant "has done whatever is reasonably practicable to comply with the Act." 42. The appellant relies upon the affidavit of a Mr Richardson who is one of its officers authorised by it to institute and conduct prosecutions for taxation offences. He deposes that he appeared in the Darwin Court of Summary Jurisdiction on the hearing of the complaints against the two respondents on 26 and 27 February 1987. He says that immediately after the matter had been dealt with by the learned Stipendiary Magistrate he attended at the office of the Clerk of Court and ordered a transcript of the proceedings. On the same day, 27 February, he advised the appellant's office in Adelaide of the outcome of the complaints and sought approval to appeal. It appears that such approval had to come from the Adelaide office. On 2 March he was advised that a decision whether to appeal would be made after an examination of the transcript of proceedings. On the same day he was, however, told by the Clerk of Courts that a transcript would be unlikely to become available for a period of 4 to 6 weeks unless notices of appeal were filed. He forwarded that advice to the appellant's Adelaide office. On 20 March he was instructed that appeals should be lodged against the penalties imposed. On 23 March he collected Notice of Appeal forms from the Darwin Court of Summary Jurisdiction and delivered them to the office of the Australian Government Solicitor for drafting and settling of notice of appeal. On 27 March he arranged to collect from the office of the Australian Government Solicitor the Notices of Appeal in settled form for filing and serving. He filed the notices at about 4.15pm on the afternoon of 27 March 1987. He says that at about 4.20pm on that same afternoon he attended at the offices of the Corporate Affairs Commission to confirm the registered office of each of the respondent companies from the files relating to each company held by the Commission. The office of the Commission had however closed at 4pm that afternoon. He says that he desired to ascertain the present registered office of the respondent companies because of some evidence given by the secretary of those companies on 26 February which caused him to believe that the registered office may have been changed. I assume that he is referring to the evidence give by Mrs Osgood the secretary of both companies. On 26 February she was asked in Court

Question: "Do you carry out all business from 2 Wells Street?" Answer: "We were but we have since moved to Bombing Road; but it is still the registered office at the moment because we have only got a part office for an after hours office. We have not finished moving yet. We are still in the process." 43. By an affidavit sworn on 28 May 1987 Mrs Osgood says the registered offices of both companies was 2 Wells Street, Fannie Bay until 2 April 1987 and that had been their registered office for approximately 22 years. On 2 April 1987 the registered office was changed to Lot 4215 Bombing Road, Winnellie. 44. Mr Richardson says that he conducted his searches at the office of the Corporate Affairs Commission at about 9.20am on 30 March and ascertained that the registered office of each of the respondents was still at 2 Wells Street, Fannie Bay. He says that at about 9.40am on 30 March he delivered a copy of each notice of appeal to premises situated at 2 Wells Street, Fannie Bay and at about 9.50am on the same morning he delivered a copy of each notice of appeal to Mrs Osgood at 17 Bombing Road, Winnellie. 45. In my view, and accepting everything said in the affidavit of Mr Richardson, there is nothing to show that the appellant either through Mr Richardson or its other agents has done whatever was reasonably practicable to comply with the Act. There is obviously nothing to suggest that the appellant did not know of the provisions of the Act; and as a corporate body constantly involved in legal proceedings and with offices throughout Australia it would be very surprising if it were suggested that it did not know of these provisions. There is nothing in the affidavit of Mr Richardson which suggests that it was not reasonably practicable to file and serve the Notices of Appeal within time. It was of course not his prerogative to determine to appeal but he so informed those who presumably had the necessary authority to make this decision and he informed them on the day that the hearing had concluded. It may have been reasonable for his superiors then to have requested a transcript, but Mr Richardson made them aware that the transcript might not be available within the appropriate time. There is nothing therefore to suggest that the decision to appeal could not have been made earlier than the 20th day of March 1987 for on 20 March the appellant was in no better or worse position than it was on 27 March since it did not have a transcript. Nor is there anything to suggest that it was not reasonably practicable to lodge and serve the appeals at any time between 20 and 27 March. Mr Richardson says he collected the Notice of Appeal forms on 23 March and delivered them to the Australian Government Solicitor for drafting and settling. Now I cannot accept that it would necessarily have taken another 4 days to draft and settle the Notices of Appeal. The appeals were of the simplest kind. They were appeals against sentence. There was a form provided, and really all that had to be done, and what was ultimately done, was to fill in a few details on that form. It must have been known by 20 March that time was running out and I can see nothing in the affidavit of Mr Richardson which suggests it was impracticable to have the notices prepared, filed and served between 23 March and 27 March. Furthermore, caution would have dictated filing of the documents at least a day or so before the final day so as to allow time for service. I cannot, with respect to Mr Richardson, find any excuse for the late service because he only attended at the offices of the Corporate Affairs Commission at 4.20pm on the last day on which the notices had to be served. No reason is given as to why this search could not have been conducted earlier and indeed it can hardly be suggested that it was not reasonably practicable to have made the search before 4pm that day when the offices of the Corporate Affairs Commission closed. I do not think Mr Richardson should necessarily be held responsible for this. He is not legally qualified and may not have appreciated the necessity of doing these things in time. But if he acted on instructions then those instructing him must be presumed to have been aware of the position. What I am presented with here is a situation in which a large corporation, presumed to know the law and obviously aware of the provisions of the Act relating to institution of appeals takes more than one month to institute the simplest of appeals and then asks the Court to dispense with compliance of the necessity to serve those appeals within time. I repeat that there is nothing before me to suggest that the appellant has done whatever is reasonably practicable to comply with this Act and that is the test which I must apply, and by that test the appellant quite plainly fails. 46. The authorities do not assist the appellant. Rather they indicate that substantial reasons must be shown to establish that the appellant has done whatever was reasonably practicable, and the onus is on the appellant to show this. 47. In Moriarty v Moriarty (1964) SASR 356 the appellant had been convicted by a Court of Summary Jurisdiction. He delivered within one month three copies of the Notice of Appeal to the Clerk of Court but he did not serve the respondent. Hogarth J. held that the appeal had not been duly instituted and His Honour referred to the power given to the Court to dispense with compliance. He said at page 360: "The power given to the Court to dispense with compliance, however, exists only if in the opinion of the Court, 'the appellant has done whatever is reasonably practicable to comply with the provisions of (the) Act.' The onus is upon the appellant to satisfy me that he did so; but I am not satisfied that he has brought himself within the section. There appears to have been some form of misunderstanding between him and the Magistrate's Clerk, the appellant believing that by delivering the notice of appeal destined for the respondent to him, it would be served upon her by an officer of the Court. The Act, however, clearly distinguishes between obligations of an appellant to serve the respondent on the one hand, and the Magistrate's Clerk on the other; and the onus was upon the appellant to acquaint himself with, and comply with, the requirements of the Act." 48. One would think that the appellant in that case being unrepresented and unacquainted with the procedures would have been in a stronger position than the present appellant. Yet he did not succeed. 49. In Horsburgh v Steel (1972) 3 SASR 179 the appellant had been sentenced to imprisonment for 21 days but was released some 11 days before the time for appeal expired. The Notice of Appeal was instituted only 3 days after time had expired. The failure to institute proceedings within time seems to have resulted from what His Honour Bray C.J. said at page 183 was, "a chapter of accidents and misapprehensions." The appellant had had some conversations with his brother and some other persons and had put off any action until he had seen his Probation Officer on the last day upon which the appeal could be instituted. His Honour was of the view that the appellant had not done whatever was reasonably practicable. This was a decision under the amended South Australian Act which until 1969 was on all fours with the Northern Territory Act so far as the sections under consideration are concerned. Nevertheless there remain more similarities than differences as the above case indicates. The effect of the amendments is discussed by Forster J. in Pushenjak v Owens at pages 193-4. 50. In Potter v Neave [1944] SAStRp 28; (1944) SASR 19 and Dawe v Northwood (1951) SASR 73 the appellants failed because of the defaults of their solicitors. However it seems now the better view that if the appellant himself has done whatever is reasonably practicable to comply with the provisions of the Act by giving his solicitors all necessary information and proper instructions within a reasonable time for them to take proceedings he has personally done whatever is reasonably practicable to comply with the provisions of the Act; though much may still depend upon the capacity of the client to understand what must be done. See Shugman v Manz (1970) SASR 381: Pushenjak v Owens (1972) 20 FLR 190: Joseph v Davies (1976) 14 SASR 273 at 280: Seven v Seears (1984) NTJ 1112. But there is no suggestion here, and indeed it could hardly be, that the appellant, who is not in the same position as a layman ignorant of the law, could complain of any defaults of those of its own body who represent it. 51. On the other hand the cases where compliance with a condition precedent was dispensed with under S. 165 show clearly enough that reasonable efforts in all the circumstances had been made to comply with the provisions of the Act. 52. In Jarvis v Jarvis [1947] SAStRp 8; (1947) SASR 12 the respondent was in England, and 10 days after the order against which the appellant wished to appeal was made, the appellant posted by air mail Notice of Appeal for service on the respondent in England. In the ordinary course the Notice should have reached England 5 days later but it was not in fact received until one month later. It was held that compliance with the condition precedent should be dispensed with. In Homes v Thorpe [1924] SAStRp 64; (1924) SASR 479 notice had been given in time to the Clerk of Courts and thereafter continuous efforts had been made to serve it within time. This, however, may be a borderline case because the appellant left himself only 3 days to effect service. 53. The cases cited make it plain that any delay in filing or service of a Notice of Appeal or entry of recognizance or payment of fees beyond the one month allowed must be explained in terms which show that the appellant exercised all reasonable caution and expedition which would be expected of a reasonable person desiring to appeal and who knows or who should know of the limitations of time relating to appeals. In Potter v Neave (supra) Mayo J. said at page 21: "It is for the person whose proceedings are defective, and who desires the benefit of s. 165, to show by evidence or by admitted facts, that he, and his agent, that is the solicitor (if any) by whom he is represented, have done 'whatever is reasonably practicable'. If grounds, on which an affirmative opinion to that effect can properly be based, are not shown, the proceedings remain inchoate, they do not reach the stage of being an instituted appeal. Whether everything reasonably practicable has been essayed, must be tested by the circumstances of the intending appellant and his accessibility to means for completing and lodging the initial documents. 'Practicable' may possibly be paraphrased in the context of s. 165, as 'capable of being done or accomplished with the available resources whatever they may be.' I apprehend, it is unnecessary to show that compliance with the procedure laid down was quite impossible, but, be that so or not, it must at least be demonstrated as unreasonable to expect in the particular circumstances that exact compliance should be insisted

on. The particular circumstances that exact compliance should be insisted on." 54. It does not seem to me that the appellant has here shown any real obstacle to doing what was "capable of being done or accomplished with the available resources." 55. I have been referred to a decision of my own namely Koola Pty Ltd v Hughes (unrep) 15 August 1986. That case was concerned with the power of the Supreme Court under S. 166 of the Justices Act to make amendments in appropriate cases to allow an appeal against sentence to be changed to an appeal against conviction. It had to do with the interpretation of S. 166 of the Act. The basis of the exercise of the power under S. 166 was that there had been a sufficient "entry" into the Court through the appeal procedures to give the Court power to make the amendment. This is a different case because the crux of the argument is that there has been no "entry" into the appellate jurisdiction of the Supreme Court. 56. It follows that I am of the view that in the circumstances of this case I cannot dispense with compliance with what is clearly a condition precedent to the institution of an appeal namely that service of the Notice of Appeal must be effected with 1 month. 57. I am also satisfied that it is a condition precedent to the institution of these appeals that a recognizance should be entered into within that period, and that this was not done. I am however told, and accept, that when Mr Richardson lodged the Notices with the Clerk of Courts he was told that because the appellant was the Taxation Commissioner it would not be necessary for it to enter into a recognizance. I can well understand the clerk making such a statement because it accords with good sense. Unfortunately it is not good law for the reasons I have already set out. However since Mr Richardson was told this by a person in authority it was not incumbent upon him to argue about what should have been a formality. I consider therefore that I can dispense with this condition on the basis that the appellant has done whatever was reasonably practicable to comply with this provision. 58. It is not necessary to determine whether there has been a failure to pay the requisite fee or whether such payment could be dispensed with under S. 165. I do not believe that any substantial argument was addressed to me on this matter and it may be that the appellant might have some explanations to put forward which might indicate that it had done all that was reasonably practicable or that the appellant may endeavour to persuade me that this aspect of the matter could and should be dealt with under S. 166. I make no positive ruling on this and I am happy to be in that position; because if it were necessary to find for the respondents on this issue it would be regrettable if the appellant were shut out of appealing by such a technical point which ought to be able to be easily cured without injustice to the respondents. c.f. Walshe v Griffen (1977) 16 SASR 149. 59. I am therefore the more satisfied with the result being based on the failure to service the Notices in time because this is a more substantial and proper ground for the respondents to rely on and has the traditional approval that time limits, subject to just exceptions, should generally be enforced; particularly in criminal or quasi-criminal matters; so that a respondent should know with certainty, and no doubt with relief, that after the expiration of a time certain he will be no further troubled. 60. In the event pursuant to rule 8 of the Supreme Court (Justices Appeal) Rules I summarily dismiss the appeals. I will hear counsel on the question of costs.