These reasons deal with an application that should never have been necessary.
The appellants seek leave to appeal from certain costs orders made in the General Division of this court on 17 June 2025. The appeal notice was not filed until 25 July 2025. Accordingly, not only do the appellants require leave to appeal, they also require an extension of time to appeal. The appellant's case was due on 8 August 2025; it was not filed on time. The appellants applied for an extension of time to file and serve the appellant's case. On 27 August 2025 the acting Court of Appeal registrar ordered that the time for the appellants to file and serve the appellant's case be extended to 12 September 2025.
These reasons deal with the appellants' application in an appeal filed 12 September 2025 seeking a further extension of time to file and serve the appellant's case. The extension sought was one business day - from 12 September 2025 to 15 September 2025 (the intervening two days being a weekend). The application was supported by an affidavit sworn by the appellants' solicitor on 12 September 2025.
The affidavit disclosed that the appellants' solicitor spoke with the appellants' counsel on 12 September 2025. The appellants' counsel informed the appellants' solicitor that the appellants' draft grounds of appeal, submissions and legal authorities needed to be double checked to ensure that they were accurate. The appellants' counsel had allocated half of the previous day to finalise the appellant's case. However, the half day mediation that the appellants' counsel was engaged in on that day had in fact occupied a full day. Accordingly, the filing of the appellant's case would be delayed until Monday, 15 September 2025. The appellants' solicitor then telephoned the solicitor acting for the second and third respondents (they being parties who have filed a notice of intention to participate in the appeal). The appellants' solicitor conferred with the solicitor for the second and third respondents as to whether a one business day extension of time to file and serve the appellant's case could be agreed. The solicitor for the second and third respondents refused to consent to the proposed extension.
The appellants' application was referred to a single judge of appeal, rather than a Court of Appeal registrar, because the appellants were seeking a further extension of time and the second and third respondents did not consent to the extension. After reviewing the application, I made orders on 12 September 2025 to the effect that:
[T]he second and third respondents file and serve an affidavit as to what, if any, specific prejudice they will suffer in the event that the time for the appellants to file and serve an appellant's case is extended to 4 pm on 15 September 2025.
The appellant's application in an appeal filed 12 September 2025 be determined by a single judge of appeal on the basis of the documents filed and without listing the matter for hearing.
The second and third respondents did not file an affidavit within the time permitted by par 1 of those orders. No reason was provided for the second and third respondents' refusal to consent to the one business day extension sought by the appellants. The available inference, which I drew, was that the evidence available to the second and third respondents would not have assisted them to establish that they would suffer specific prejudice because of the one business day extension sought by the appellants. Nothing before the court suggested that the proposed extension would cause specific prejudice to the second and third respondents.
Nor, other than in truly exceptional circumstances, is there reason to expect that a one business day extension of time to file and serve an appellant's case would ever cause specific prejudice to a respondent. At the most, in an ordinary case, it may mean that a respondent is unable to rely on r 66(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA). That provision may be availed of to resist costs being allowed for an appellant's case when it is filed outside the time specified for doing so. However, as under r 66(2) the court may 'order otherwise' - and commonly does so where there has been a minor filing delay - this possible future prejudice has little to no weight as a consideration when determining an application for an extension of time to file and serve an appellant's case.
In the General Division there is a specific power to extend or abridge time: Rules of the Supreme Court 1971 (WA) (RSC) O 3 r 5. That rule, other than O 3 r 5(3) RSC, applies for the purpose of the Supreme Court (Court of Appeal) Rules by virtue of r 5(4) thereof. See Billabong Gold Pty Ltd v Vango Mining Ltd.[1] Among other things, O 3 r 5(1) RSC empowers the court, by order, to extend the period within which a party is required or authorised to do any act in any proceedings. The application of O 3 r 5(1) RSC for the purpose of the Supreme Court (Court of Appeal) Rules means that a single judge of appeal or a Court of Appeal registrar may extend the time for an appellant to file and serve its appellant's case. See Supreme Court (Court of Appeal) Rules r 5(2)(c), r 10(2), r 43(2)(h).
Order 3 r 5(1) RSC is remedial and confers a broad power on the court to relieve against an injustice: Billabong Gold Pty Ltd v Vango Mining Ltd [47], [65], [73].
The interests of justice were strongly in favour of granting the extension of time sought by the appellants. True it is that there had been a degree of delay on the part of the appellants in commencing and progressing the appeal. That prior delay told against an extension and had to be taken into account. But the further extension sought by the appellants was so minor as to be insignificant. The reason for the further extension was properly explained by the appellants' solicitor's affidavit. The delay was not attributable to the appellants themselves. Rather, it was due to a time management issue experienced by the appellants' counsel when an unrelated court commitment overran its scheduled time. That difficulty, although regrettable, is not uncommon. Importantly, it was not shown - or even suggested - that the proposed extension would cause specific prejudice to the second and third respondents.
The appellants sought a reasonable extension of time which would not adversely affect any future hearing date or otherwise disrupt the conduct of the litigation.
In all the circumstances, weighing and balancing the matters set out above, I was well satisfied that it was in the interests of justice to extend by one business day the time for the appellants to file and serve their appellant's case. Accordingly, on the morning of 15 September 2025 I made an order that:
[2]
The time for the appellants to file and serve an appellant's case is extended to 4 pm on 15 September 2025; and the appellants are to file and serve an appellant's case by that time.
[3]
I commenced these reasons by stating that the application for an extension of time should never have been necessary. There are two reasons why this is the case. First, the appellants' counsel could and should have better managed his time so that the finalisation of the appellant's case by its due date was not risked by other commitments running overtime. Second, the second and third respondents' solicitor could and should have consented to the extension of time sought by the appellants' solicitor. This would have meant that, instead of an application in an appeal supported by affidavit and its associated cost, the extension would have been dealt with quickly and efficiently by a simple consent notice.
The importance of the goal and objects in O 1 r 4A and r 4B RSC must be kept firmly in mind in all litigation in this court. The objects include disposing efficiently of the business of the court (r 4B(1)(b)), maximising the efficient use of judicial and administrative resources (r 4B(1)(c)) and ensuring that the applicable procedure, and the costs thereof, are proportionate (r 4B(1)(e) and (f)). Each of those objects was stymied by the second and third respondents' solicitor's refusal to agree to a one business day extension for the appellants to file and serve their appellant's case.
The attainment of the objects in O 1 r 4B RSC is not just a matter for the court. It is also a matter for the litigants in the court and the legal practitioners who practice in the court on behalf of those litigants. A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty: Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 3.1. There is a similar overriding duty to the court and the interests of the administration of justice that must be observed by a barrister: Legal Profession Uniform Conduct (Barristers) Rules 2015 r 4(a), (d), r 23. Those general duties encompass a requirement, when acting in litigation in this court, that legal practitioners assist the court so as best to ensure the attainment of the objects referred to in O 1 r 4B. Legal practitioners practising in the court should act conformably with - and in a manner that best ensures the attainment of - the objects in O 1 r 4B RSC.
So understood, a legal practitioner will not be in breach of any duty to his or her client in agreeing a reasonable extension of time which neither adversely affects a future hearing date nor otherwise disrupts the conduct of the litigation. To the contrary, by avoiding the need for an unnecessary application, the legal practitioner will be acting in accordance with his or her duty to assist the court in attaining the objects in O 1 r 4B RSC. There is an added benefit: the legal practitioner's client will not incur the costs associated with an unnecessary application.
It is unfortunate that the solicitor for the second and third respondents refused to consent to the proposed extension. In circumstances where no specific prejudice due to the proposed extension was asserted, and no reason was provided for the refusal to consent, I considered whether it might be appropriate to ask the solicitor to show cause in terms of O 66 r 5 RSC. Ultimately, I decided that it was not appropriate. The appellants had not sought costs in their application in an appeal filed 12 September 2025. No order for costs being sought it would have been inappropriate, and in all the circumstances disproportionate, for the court to have implemented the procedure under O 66 r 5 RSC. A different position may prevail in the future if the present circumstances are replicated. Legal practitioners practicing in this court ought to agree to requests for a reasonable extension of time where doing so will not adversely affect any future hearing date or otherwise disrupt the conduct of the litigation.
I resolved the question of costs by ordering that there was no order as to costs on the appellants' application in an appeal filed 12 September 2025.
[4]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.