consideration
6 Both before me at the hearing and in written submissions, both parties presented detailed arguments addressing the first question, namely whether leave to appeal is required. The respondents submitted that leave is required for two reasons:
(a) the First and Second Judgments are interlocutory; and
(b) the Solicitors were not party to the proceeding in which the First and Second Judgments were pronounced.
7 A party seeking to appeal from an interlocutory judgment made by a single judge of the Court requires leave; Federal Court of Australia Act 1976 (Cth) s 24(1A). If application for that leave is not made orally at the time the judgment is pronounced, it must be made within seven days "from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow"; Federal Court Rules O 52 r 10(2). If leave is given, the notice of appeal must be filed and served within twenty-one days after the date when leave to appeal was granted; O 52 r 15(1)(a)(ii). Where leave to appeal is not required, any notice of appeal must be filed and served within twenty-one days after the date when the judgment appealed from was pronounced; O 52 r 15(1)(a)(i). In both cases, the Court may extend the time allowed.
8 The notice of motion that was later amended (see [4] above) was filed within seven days of the First Judgment (taking into account the vacation period; see O 3 r 5 and O 2 r 2). The notice of motion seeking leave to appeal from the Second Judgment was filed within twenty-one days of that Judgment, but not within seven days. Irrespective of whether it was thought that the Second Judgment was interlocutory or final, the notice of motion was inappropriate. If the Second Judgment was interlocutory, it was filed out of time; if the Second Judgment was final, it sought the wrong relief. The notice of motion, later amended, seeking leave to appeal from the First Judgment was within time if that Judgment was interlocutory, but otherwise inappropriate.
9 For reasons that are set out below, I have decided that the Solicitors should be permitted to appeal. If leave is necessary, I would grant that leave; if an extension of time is necessary, I would grant such an extension. It is therefore unnecessary for me to form a concluded view as to whether his Honour's judgments were final or interlocutory.
10 Although the Solicitors were not party to the proceeding in which the First and Second Judgments were pronounced, they may appeal from those judgments with the leave of the Court; Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at [18]. As the First and Second Judgments imposed liability for costs directly on the Solicitors, they are clearly persons aggrieved; Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23 at 32-33. The respondents have indicated that they do not oppose the Solicitors being given leave to appeal on this basis. They do, however, submit that the judgments are interlocutory and oppose leave being given on this basis.
11 An important factor in deciding whether leave to appeal or an extension of time within which to institute an appeal should be given is the likelihood of success. If the prospect of success is so low as to render an appeal obviously futile, this is a strong indication that leave or an extension of time should not be granted; Eatts v Dawson (1990) 21 FCR 166. The reasons for delay in relation to a request for an extension are also relevant considerations; Deighton v Telstra Corporation Ltd (Lee, Heerey and R D Nicholson J, 17 October 1997, unreported).
12 The principles relevant to an extension of time were stated by McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459:
"The object of the rule is to ensure that those Rules which fix times for doing acts do not become the 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. This means 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. 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. 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. 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."
[citations omitted]
13 In this case the delay was explained as resulting from the error and confusion of the Solicitors and their advisers as to the appropriate course. I do not think that the period of delay is such as to prejudice the respondents.