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[1998] HCA 27
appellant. Appeal allowed; orders of the Full Court set aside; time for entering the appeal extended to six weeks from the High Court order; second respondent's motion to strike out stood over generally with...
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The High Court decided that once an appeal is filed on time, courts should generally grant extensions for later procedural slips (such as entering the appeal for hearing) if the delay is explained and there is no serious prejudice, without turning the extension hearing into a mini-trial of the appeal's chances. The Western Australian Full Court wrongly made the supposed weakness of the infant plaintiff's medical-evidence-based appeal the decisive reason to refuse relief, even though it lacked the actual evidence and had not warned the lawyers that it would decide the matter that way. The infant's appeal must now proceed. The decision draws a clear line between late-lodged appeals (where merits matter more) and already-started appeals (where procedural fairness and efficiency matter more).
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2,902 words · generated 24/04/2026
Bronita Karla Jackamarra, an infant plaintiff represented by her mother as next friend, suffered catastrophic head injuries on 31 August 1987 when she was approximately two years and nine months old. She was a front-seat passenger in a motor vehicle driven by her father, the first respondent, William Darren Krakouer. The vehicle was insured for third-party risks by the second respondent, the State Government Insurance Commission (SGIC), which assumed effective control of the defence. The appellant alleged that sudden braking caused her to be thrown forward and strike her head on the dashboard. The claim was not issued until 10 October 1992 in the District Court of Western Australia.
The trial on liability before Commissioner Dawes occupied June and July 1995. Judgment was delivered on 7 August 1995 dismissing the claim. The Commissioner found that the appellant had been uninjured when handed to her father eight days earlier. He accepted medical evidence from four consultants that the pattern of injuries—including bruises of varying ages in unusual positions, retinal haemorrhages and the unlikelihood of a lucid interval—was strongly suggestive of deliberate child abuse rather than the alleged motor-vehicle trauma. Conflicting accounts given by Mr Krakouer (to doctors, the mother, an insurance investigator and in answers to interrogatories) were analysed and largely rejected. A clash of medical opinion, particularly concerning whether retinal haemorrhages could result from intracranial pressure after a relatively mild injury, was resolved against the expert called by the appellant.
A notice of appeal was filed promptly on 14 August 1995. After a contested hearing on 10 November 1995 the Full Court of the Supreme Court of Western Australia ruled that the District Court order was final, so no leave was required. The SGIC's solicitors agreed to extend the time for entering the appeal for hearing until 6 February 1996. That date passed without the appeal being entered. The delay was attributed entirely to the appellant's then solicitor at the Aboriginal Legal Service, who was under pressure from other cases, administrative duties and court commitments. A draft appeal book index was filed on 7 March 1996 and served on 12 April 1996. On 15 April 1996 the SGIC filed a motion to dismiss for want of prosecution under O 63 r 7(5). On 15 July 1996 the appellant filed a cross-motion for an extension of time under O 63 r 7(1).
The Full Court (Malcolm CJ, Rowland and Franklyn JJ) heard the motions on 22 July 1996. Only the Commissioner's reasons, the notice of appeal and affidavit evidence on delay were before it; the trial transcript and medical exhibits were not. Counsel for the appellant outlined the grounds, emphasising that the appeal turned almost entirely on a proper view of the medical evidence, retinal haemorrhages, the presence or absence of a lucid interval, and the need to examine notes, photographs and reports. He made clear that his submissions were illustrative only. The Full Court reserved and on 7 August 1996 delivered reasons refusing the extension and dismissing the appeal. Malcolm CJ held that the four factors from Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 applied, the critical factor was the merits, and the appeal lacked any real prospect of success.
By special leave the appellant appealed to the High Court. The Court (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) allowed the appeal, set aside the Full Court's orders, extended time for entering the appeal to six weeks from the High Court order, stood the strike-out motion over generally with liberty to restore, and made costs orders that effectively visited the Full Court costs on the defaulting solicitors.
The High Court decided that the Full Court had erred in principle in two related respects. First, it applied the wrong legal test by treating the merits as decisive in an application to extend time for a procedural step in an already instituted appeal. Brennan CJ and McHugh J explained at [4] that once an appeal is on foot the court is dealing with a pure procedural question. The vested-right rationale that justifies close scrutiny of merits when time to institute an appeal has expired does not apply. The only usual issues are length of delay, explanation, and prejudice to the respondent or court administration. Gummow and Hayne JJ and Kirby J expressly endorsed this analysis.
Second, even assuming the Esther Investments four-factor test governed, the Full Court could not legitimately conclude that the appeal lacked “any real prospect of success” on the materials before it. The appeal challenged the Commissioner’s evaluation of medical evidence and inferences from Mr Krakouer’s varying histories. Counsel had repeatedly told the Full Court that the case “turned almost entirely upon a proper view of the medical evidence” and that “one needs to look at all of the evidence” ([11], [12]). The Full Court neither called for the transcript nor warned counsel that it proposed to decide the application adversely on the basis that the evidentiary foundation had not been demonstrated. Brennan CJ and McHugh J at [10] and [13] held that procedural fairness precluded such a course. Kirby J at [71] added that without the transcript it was not open to the Full Court to declare that particular findings were “clearly open” or “fully justified”.
The Court was also influenced by the character of the default. It was the solicitor’s oversight, not the infant litigant’s. The appellant was an Aboriginal child with severe brain damage living in a remote community. The delay, though described by Malcolm CJ as “gross”, was five months after an agreed extension and partly occupied by continuing steps toward settlement of the appeal book. No contumelious conduct was shown. Kirby J at [68]-[70] catalogued these matters as overwhelmingly favouring relief. Because the Full Court’s error was one of principle rather than mere weighting of discretionary factors, appellate intervention was warranted even though the orders were interlocutory in character ([65]).
All members agreed that the High Court should itself grant the extension rather than remit the matter. The orders made reflect that consensus.
Before Jackamarra the law in Western Australia, as stated in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, applied the four factors identified by Kennedy J (length of delay, reason for delay, arguable case, prejudice) to an application to extend time to enter an appeal for hearing. Those factors had been taken from the English Court of Appeal’s decision in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, which itself concerned an application to extend time to lodge a notice of appeal after the appeal period had expired. The High Court held that this transposition was erroneous. Brennan CJ and McHugh J at [6] pointed out that Palata and the line of English authority dealt with applications that put a vested judgment at risk. Once an appeal is instituted, different considerations apply. The Court cited Vilenius v Heinegar (1962) 36 ALJR 200 and Gallo v Dawson (1990) 64 ALJR 458 for the proposition that a more liberal approach is justified for procedural defaults in pending appeals.
The decision also clarified the limited role of merits assessment on such applications. Lord Denning MR’s observation in R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091—that courts like to know the outline of the case but “never go into much detail on the merits”—was approved and extended. The Court emphasised that detailed rehearsal of the appeal is inappropriate on an interlocutory motion. Kirby J at [66] collected a broader range of considerations, including whether delay was intentional or the result of a bona-fide mistake, whether it was the litigant’s or the lawyer’s fault, and whether prejudice could be cured by costs. He stressed that procedural rules must not become “an instrument of tyranny”.
After Jackamarra the law is that, for extensions within a pending appeal, the merits are relevant only if the appeal is so plainly hopeless that extension would be futile. Otherwise the inquiry centres on the procedural default itself. The decision reinforces that rules of court are servants of justice (Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 was cited to similar effect). It also underlines the need for procedural fairness: a court contemplating rejection on the basis of absent evidentiary detail must give the applicant fair notice. The practical consequence is that applications to cure procedural defaults in appeals are not to be converted, without warning, into summary determinations of the substantive appeal.
Paragraph [4] (Brennan CJ and McHugh J): “The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court’s business would be prejudiced by granting the application.”
Plain English: Once you have started your appeal on time, the question of whether you might win it is not the main thing the judge looks at when you ask for more time to do a procedural step. The judge looks at how long you were late, why you were late, and whether letting you continue would unfairly hurt the other side or clog up the court system.
Paragraph [7]: “An appeal, honestly lodged by a suitor within time, ‘must be investigated and decided in the manner appointed’ [citing Cox v Journeaux [No 2]]. … But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.”
Plain English: If someone files a proper appeal in time, the court has to hear it according to the rules. You cannot use a small procedural slip as an excuse to kill the appeal unless it is obviously a complete waste of everyone’s time.
Paragraph [10]: “It is one thing to conclude that counsel’s statement of the appeal argument contains the ground for its rejection. It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the Court to the detail of the evidence, the statutes or the case law. … the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course.”
Plain English: It is fair to reject an appeal if the lawyer’s own summary shows it cannot succeed. It is not fair to reject it because the lawyer has not brought every page of evidence to the extension hearing unless the judges first warn the lawyer that they expect that level of detail.
Paragraph [30] (Gummow and Hayne JJ): “The rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation.”
Plain English: Court rules about deadlines exist to help cases move forward fairly and efficiently. They are not sacred rules that must be obeyed perfectly even when doing so would defeat justice.
Paragraph [71] (Kirby J): “In the absence of the transcript, I do not consider that it was open to the Full Court to make the purported evaluations which it did of the evidence, the judgments of the effect of the evidence on the outcome, the assessment of the possibility of overturning the medical evidence or the conclusion that findings recorded in the stated reasons of the Commissioner were ‘fully justified’, that is, justified presumably by the evidence.”
Plain English: Without the actual evidence from the trial the appeal judges could not properly decide that the original decision was obviously right. They should have either obtained the transcript or left the merits for the full appeal hearing.
The precedent is triggered whenever an appeal has been instituted within time but a subsequent procedural time limit—most obviously the 12-week period for entering the appeal for hearing under rules equivalent to O 63 r 7(1)—is missed, and an application is made either to extend that time or to dismiss for want of prosecution. It applies with particular force where the default is the fault of legal representatives rather than the litigant, especially an infant, disabled or otherwise vulnerable party who bears no personal responsibility. The case is engaged when the appeal turns on re-evaluation of expert or medical evidence, credibility findings that are not purely demeanour-based, or competing inferences from documentary material, so that the Full Court cannot fairly assess arguability without the transcript or key exhibits.
It is engaged when counsel expressly informs the court that the argument depends on a full review of the evidence and that submissions are only illustrative. The precedent applies to any situation in which a lower court proposes to treat the apparent strength of the primary judgment as decisive without warning the parties that it will decide the extension application on the detailed absence of evidentiary material. Fact patterns involving relatively short periods of delay (measured in months rather than years), continuing steps toward prosecution, absence of contumelious conduct, and the capacity to cure prejudice by costs orders will attract the “more liberal approach” mandated by the Court. Conversely, the decision recognises that if an appeal is demonstrably futile on its face—without needing the full record—extension may still be refused.
Although the judgment itself does not cite subsequent authority, its internal treatment of earlier decisions supplies the template for how it should be applied. The Court distinguished Esther Investments and Palata Investments on the ground that both concerned extensions to institute appeals rather than steps within pending appeals ([5]-[6]). It followed Mehta for the proposition that only an outline of the case is ordinarily required ([3]). Gallo v Dawson and Vilenius v Heinegar were cited for the liberal approach appropriate to pending appeals ([4]). General Steel Industries was invoked to emphasise that summary termination of a properly instituted appeal requires a clear case, while noting the different context once a trial has occurred ([32]-[34]).
The judgment treats Cox v Journeaux [No 2] as foundational for the right to have a timely appeal “investigated and decided in the manner appointed” ([7]). It reads Queensland v J L Holdings Pty Ltd as confirming that rules and case-management principles are servants of justice, not masters ([30], [65]). The careful separation of credibility-based findings from findings based on logic, medical reasoning and documentary inference ([38], [72]) shows how the Court expects appellate review principles (Abalos, Devries) to be applied only with the full record. In short, the decision positions itself as correcting an over-extension of English and earlier Western Australian authority and restores a balance that prioritises substance over technicality where an appeal has been regularly instituted.
The judgments leave open precisely how “futile” or “so devoid of merit” an appeal must be before merits become decisive on a procedural extension. Brennan CJ and McHugh J at [7] use the word “unusually”; Gummow and Hayne JJ at [35] accept that argument may be necessary to demonstrate futility. The borderline between a “rough and ready” outline and the impermissible detailed rehearsal remains fact-sensitive.
Another open question is the degree of warning required by procedural fairness. The Court held that counsel must be given “fair notice” before the court decides on the lack of evidentiary foundation ([10]), but does not prescribe whether an exchange during oral argument suffices or whether formal adjournment and directions are necessary. Kirby J at [71] suggests that if the court wishes to convert the motion into a de-facto hearing of the appeal it should require the full transcript and give the parties time to prepare—yet the precise trigger for that obligation is not spelled out.
The weight to be given to the fact that delay is solely the lawyer’s fault, especially where the client is an infant or disabled person with no capacity to supervise the solicitor, is left for future calibration. While all judgments treat it as a powerful factor favouring relief, the extent to which a costs order against the solicitor can cure prejudice to the respondent or the court system is not exhaustively analysed. Finally, the interaction between this procedural jurisprudence and modern case-management statutes or rules that expressly elevate efficient use of court resources remains for later development; the Court cites Queensland v J L Holdings but post-dates the rise of explicit statutory overriding purposes in most Australian jurisdictions. These questions will require careful argument in subsequent cases where the facts press at the boundaries the High Court has drawn.
High Court of Australia Brennan CJ McHugh, Gummow, Kirby and Hayne JJ Jackamarra (an Infant) v Krakouer (P28/1997) [1998] HCA 27
(a) the period for entering the appeal for hearing in the Full Court be extended to a date six weeks from the making of this order;
(b) the second respondent's motion to strike out the appeal stand over generally;
(c) the second respondent have liberty to restore the strike out application in the event of the appellant's failing to enter the appeal within the period specified in par (a);
(d) the appellant pay the costs of the second respondent in the Full Court.
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. 1. R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; [1975] 2 All ER 1084 at 1088 (England); Jess v Scott (1986) 12 FCR 187 at 191-192 (Federal Court of Australia); Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 205 (WA). Esther Investments was concerned with an application to extend the time for taking a step in respect of an appeal already lodged, but the Full Court applied the same principles as if it was an application to extend the time for lodging an appeal. 2. [1975] 1 WLR 1087 at 1091; [1975] 2 All ER 1084 at 1088.
In such a case as the present, there are usually four main factors to be considered in exercising the Court's discretion to extend time, namely, 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 [5] . (Our emphasis.) 1. Jackamarra v Krakouer (unreported; Supreme Court of WA (Full Court); 7 August 1996) at 17. 2. Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196.
It is one thing to conclude that counsel's statement of the appeal argument contains the ground for its rejection. It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the Court to the detail of the evidence, the statutes or the case law. Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course.
The transcript of the argument in the present case shows that counsel for the appellant made it plain to the Court that his argument depended on a careful examination of the whole of the evidence and that his submissions were only intended to demonstrate the nature of his arguments. At one stage, after saying that the case did not turn upon the recollection of witnesses, he informed the Court that the case turned "almost entirely upon a proper view of the medical evidence, and of course the medical practitioners are supported invariably in their evidence by their notes and by photographs and their reports". He also informed the Court that "[m]uch turned on the observations made by the medical practitioners at the time as to whether retinal haemorrhages were of a particular kind. It is perhaps not necessary for me to detail that now but there was a diversity of specialist opinion as to what the retinal haemorrhages were and what they indicated." Later, a significant passage appears in the transcript, counsel submitting:
The findings made by the learned commissioner to the extent that they turn upon the medical evidence, or one view of the medical evidence, are challenged in grounds 5 and 6. The finding to which your Honour the Chief Justice referred a moment ago is challenged in ground 6(a).
Malcolm CJ: 7 is also related to the medical evidence, is it not?
Roberts-Smith, Mr: Yes, certainly, but raises a somewhat different aspect of the medical evidence. (Our emphasis.)
Immediately before the Court reserved judgment, the following exchange took place:
Franklyn J: Does it become clear, when they deal with the retinal haemorrhage and the bruising, that they are attributing in some way the alleged period of lucidity or absence of it to that?
Roberts-Smith, Mr: I think it is. One, of course, needs to look at all of the evidence, and their reports, but my recollection is - and I trust I am not overstating it - that the period of lucidity, or the disbelief of that account, really went to their disbelief of the whole incident. (Our emphasis.)
With great respect, it seems to us that the Full Court could not come to the conclusion that the appeal had no prospects of success unless it examined all the evidence, particularly the medical evidence. This was an appeal which depended substantially, if not entirely, on determining whether various findings of the Commissioner were correct having regard to the proper evaluation of the evidence. If the Full Court had examined all the evidence, it may have come to a clear conclusion that the appeal could not succeed. In that case, applying the approach in Esther Investments, it would have been justified in refusing the application for extension of time. But without that evidence, it could not make the finding that it did.
In our view, it is not an answer to the appellant's case in this Court that the fault lay with her legal advisers because they did not put the evidence before the Full Court. No member of the Full Court indicated to counsel that the application would fail because the evidence was not before the Court. The application was conducted in accordance with what seems to be the practice in Western Australia, a practice which, as we have indicated, is dictated by the nature of the application.
The appeal should be allowed. Counsel for both parties agreed that, if the appeal was allowed, the appropriate course would be for this Court to extend the time rather than remit the matter to the Full Court for further hearing. Counsel for the second respondent suggested that it would be appropriate to extend the time for entering the appeal to six weeks from today's date. We agree with the course proposed.
Accordingly, we would make the following orders:
(3) extend the time for entering the appeal to six weeks from today's date;
(4) stand over generally the second respondent's motion to strike out the appeal;
(5) the second respondent to have liberty to restore the strike out application in the event of the appellant's failing to enter the appeal within six weeks;
(6) the second respondent to pay the costs in this Court;
(7) the appellant, who had to seek the extension of time in the Full Court, to pay the costs in that Court although no doubt those costs will be borne by the appellant's then solicitors whose default necessitated the application for an extension of time.
Bronita Karla Jackamarra [18] was born on 28 November 1984. On 31 August 1987, when she was about two years nine months old, she suffered serious head injuries which have resulted in severe and permanent brain damage.
I do not accept that on a balance of probability the plaintiff suffered her severe head injury as a result of the first defendant's negligent driving. I think it just as likely, if not probable that the plaintiff suffered that injury as a result of some deliberate act of abuse. The fact that the plaintiff was found to have bruises on various parts of her body in unusual positions ranging from ages of less than twenty four hours to up to seven days called for investigation, as did the likelihood that the child was shaken.
The delay in the prosecution of the appeal was entirely the fault of the appellant's then solicitor who did not attend to the matter because of pressure to attend to other matters conducted by the service which employed her.
On 7 August 1996, the Full Court dismissed the application for extension of time and dismissed the appeal for want of prosecution, with costs. Malcolm CJ, with whom the other members of the Court agreed, said that:
In such a case as the present, there are usually four main factors to be considered in exercising the Court's discretion to extend time, namely, 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 [23] . Malcolm CJ went on to say that: The critical issue, however, relates to the merits of the appeal. In my opinion the appeal lacks any real prospect of success. This is a case where the apparent lack of merit in the appeal is in the end decisive. 1. Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196.
It is against the order refusing an extension of time and dismissing the appeal to the Full Court that the appellant now appeals to this Court. It was submitted that the conclusion that the appeal to the Full Court had no "real prospect of success" was wrong in both fact and law. It was submitted that because the Full Court had before it only the reasons for judgment of the primary judge, the notice of appeal to the Full Court and evidence only on the issue of delay in prosecuting the appeal (and did not have any of the evidence given at trial), it was not open to the Full Court to conclude that the appeal had no real prospect of success. Further it was submitted that the test applied was, in any event, too onerous.
Before dealing with these arguments, it is as well to set the arguments in their proper context.
Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. Delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with prescribed time limits. Each day's delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible.
It is with these considerations in mind that the rules of court prescribe times for the taking of certain steps in a proceeding. They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than ninety years ago as the "sporting theory of justice" [24] . They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation [25] , so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation.
Here, cross-applications were made to the Full Court - by the respondent to the appeal to strike it out for want of prosecution, and by the appellant, for an extension of time within which to take steps prescribed by the rules governing the appeal. If the factors which are to be taken into account in considering each of these applications are not identical, they are, at least, broadly similar. Thus, it was not disputed that in considering whether to strike an appeal out for want of prosecution and in considering whether to grant an extension of time for the taking of the procedural steps necessary to make an appeal ready for hearing, the court dealing with those applications should have regard to the chances of the appeal succeeding. Nor was it disputed that, in some cases, the chances of the appeal succeeding may be so slight as to warrant summarily dismissing the appeal or refusing an extension of time. Both parties submitted that the test which the court should apply before taking either of those steps was whether the appeal is "arguable" or "fairly arguable". That apparent agreement may mask more than it reveals; much turns on what is meant by "arguable" or "fairly arguable".
Reference was made to the cases dealing with summary determination of actions before trial. In General Steel Industries Inc v Commissioner for Railways (NSW) [26] Barwick CJ set out, in an appendix to his reasons [27] , a list of cases dealing with the test to be applied in determining whether to terminate an action summarily before trial. As Barwick CJ pointed out [28] :
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".
Although various expressions have been employed in this context, all of them may be seen as different ways of saying that a court should not exercise its powers of summary determination of a proceeding except in clear cases [29] . The statements referred to in General Steel Industries Inc were all made about the summary determination of a proceeding without trial. The present matter arises in a different context. Here there has been a trial of the appellant's claim and the question is not whether she should be denied access to a determination of her claim in the ordinary way but whether she should now be denied access to a review of that decision. 1. (1964) 112 CLR 125. 2. General Steel Industries Inc (1964) 112 CLR 125 at 138. 3. General Steel Industries Inc (1964) 112 CLR 125 at 129. 4. See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, per Dixon J: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury."
Her appeal is as of right and was instituted within time but that right must be exercised subject to the limitations imposed by the rules. If exercising her right in accordance with those rules, she should not be denied the opportunity to present her appeal in the ordinary way except in a clear case. So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification "if all other things are equal" is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not "arguable" or not "fairly arguable". Each of the formulae mentioned by Barwick CJ in the passage we have quoted from General Steel Industries Inc intends to convey that meaning. But, of course, if formulae of the kind set out in General Steel Industries Inc are applied in the case of an appeal, it is important to recall that the context is different. The boundaries of the field for debate between the parties on appeal have been set at trial. Before a proceeding has been tried there may well be considerable uncertainty about what evidence will be given and how that will affect the final identification of issues to be decided. Those uncertainties should have been largely resolved at trial and the material and the issues for consideration on appeal will ordinarily be readily identifiable. Is it clear, then, that those issues will be resolved against the appellant?
The parties submitted here that the Full Court should have decided whether the appeal was "arguable". It is important to understand what is meant in this context by "arguable". If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed. To permit it to proceed is to subject the respondent to the many costs of litigation [30] needlessly and is to occupy the courts when they could be occupied more productively. No doubt, as Barwick CJ said in General Steel Industries Inc [31] :
great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. But as he also said [32] : On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. Inevitably, then, courts will sometimes have to balance competing considerations. If the futility of an appeal can be demonstrated only by hearing the whole argument there may be no advantage in bringing that argument forward to the time at which some application is made to cure a minor procedural default. But that is not the present case. 1. Attention is usually directed to the costs incurred for representation but they are only one kind of cost incurred in litigation. Litigants suffer other costs - not least their time and the general burden of the litigation. 2. (1964) 112 CLR 125 at 130. 3. General Steel Industries Inc (1964) 112 CLR 125 at 130.
In the present case, the appellant accepted in the Full Court that she had to show that the appeal was arguable. Not only did the appellant's outline of argument to that Court address the merits of the appeal, any lingering doubt that there may have been about the importance of the question was resolved very early in the argument in that Court. At the outset of the argument counsel were told by the Court that the "appeal is likely to be struck out unless it is saved by its merits" and that counsel for the appellant
should take it that, having regard to the length of the delay, the reasons for the delay and the apparent absence of any prejudice other than the uncertainty of the situation, the key issue here is whether there is merit in the appeal sufficient to overcome those difficulties, because if the only question was the length of the delay, reasons for the delay and a matter of prejudice and the appeal had merit, it is likely that an extension of time would be granted. And the appellant was right to proceed on the basis that a necessary part of the argument in support of the application to extend time and the opposition to the application to strike out was to show that the appeal was arguable. If she did not show that the appeal was arguable there would be no point in extending time and she would suffer no injustice if the rules were applied [33] ; the application to strike out should succeed. 1. Gallo v Dawson (1990) 64 ALJR 458; 93 ALR 479.
In fact, however, the appellant's argument in the Full Court did not go beyond stating the arguments which the appellant wished to advance on the appeal - arguments which were revealed by the notice of appeal. That notice of appeal gave seven grounds. Of these, only one (ground 1) sought to raise any question of law; the other six grounds were all challenges to findings of fact made by the primary judge. Attention was directed in the Full Court principally to the factual questions that it was sought to raise in the appeal. In this Court, attention was directed only to those factual questions. Nevertheless, it is as well to say something briefly about ground 1 and the circumstances which gave rise to it before dealing with the other matters.
Mr Krakouer did not give evidence at the trial. The appellant tendered evidence of his account of the circumstances of the accident by tendering an answer which he had given to interrogatories and by leading evidence from the appellant's mother and the appellant's doctors of what Mr Krakouer had said about the accident. The accounts Mr Krakouer gave differed in important respects. SGIC led evidence from an insurance investigator of two conversations with Mr Krakouer in which, again, two different accounts were given. Ground 1 sought to challenge the reception of the evidence of the insurance investigator led by SGIC. Given the way in which the trial was conducted (in which evidence of out of court admissions by one defendant, Mr Krakouer, were treated as evidence against the other defendant) there is nothing in this point. Either SGIC was rightly treated by the parties as standing in the shoes of its insured, Mr Krakouer, or none of the evidence of out of court admissions by Mr Krakouer whether led from the appellant's mother, Ms Jackamarra, or the doctors, should have been admitted as evidence against SGIC. This ground of appeal may be put to one side, as it seems it was in the Full Court. The challenge which the appellant sought to mount by her appeal to the Full Court was, then, a challenge to the various findings of fact made by the primary judge. The challenge was put in various ways: that the primary judge should have assessed Ms Jackamarra's evidence otherwise than he did and reached different conclusions from those he did reach; that the primary judge should have reached other conclusions about the effect of Mr Krakouer's out of court statements than he did; that the primary judge should have reached other conclusions about the effect of the medical evidence than he did. All of these challenges depended upon attacking the findings which the primary judge had made about the effect of oral evidence which he had heard. The difficulty of that task is notorious [34] . The difficulty of that task is none the less when, as counsel for the appellant submitted to the Full Court, this case was one which "turns almost entirely upon a proper view of the medical evidence".
As appears from the reasons for judgment of the primary judge (which were before the Full Court) he concluded that the appellant was uninjured when handed by her mother into the custody of Mr Krakouer about eight days before 31 August 1987, the day when she was taken to the doctor obviously severely injured; all four consultants who had examined the appellant for the purpose of giving evidence "were strongly of the opinion that the overall pattern of [her] injures was suggestive of deliberate child abuse". Indeed the primary judge said in his reasons that the consultant who had been retained to give evidence on behalf of the appellant had expressly concurred with the opinion of a consultant retained on behalf of SGIC that "in view of the multiple bruises of varying ages and the apparent severity of the injury I believe that it is highly unlikely that this child's injuries were caused in the alleged motor vehicle accident as described".
In those circumstances, did the appellant show that the appeal was arguable by saying that she sought to challenge these findings? In our view it was not enough simply to state the argument - something more was needed to demonstrate that the argument was one that might succeed.
In some cases, reference to the reasons for judgment below and the notice of appeal will reveal an arguable case of error but in this case it did not. This was not said to be a case in which the reasons for judgment of the primary judge bespoke error. It was not suggested in the Full Court or before this Court that the reasons revealed inconsistency or error of logic. It was not suggested that the reasons showed that the primary judge had not used, or had misused, the opportunity which he had had to observe the witnesses. On their face, the reasons were cogent and comprehensive and were reasons that depended very largely upon the observations which the primary judge made of the witnesses who gave evidence before him.
This is not to say that every application to cure a procedural default in relation to an appeal will or may be turned into a hearing of the appeal. As we say, there will sometimes be nice questions of judgment to be exercised by the Court and by the parties' practitioners. But if there is a dispute about whether the appeal is arguable then it will be for the appellant who seeks to maintain the appeal to demonstrate that that is so. Sometimes, perhaps more often than not, very little material will be needed in aid of the contention that the appeal is arguable. This appeal was not of that kind. Indeed it was an appeal based on grounds of a kind which present an appellant with particular difficulties. Those difficulties had to be addressed if the appellant was to show that her appeal was arguable.
In particular, if the appellant wished to contend that examination of the transcript of the evidence would reveal error by the primary judge, it was for the appellant to put that transcript before the Full Court. Merely stating that the appellant would argue on appeal that the findings of fact were flawed says nothing about whether that argument can be maintained. The transcript was available to the appellant's advisers at the time of the application to the Full Court. The appellant's argument to that Court expressly acknowledged that the appellant must demonstrate that the appeal was arguable and the Full Court pointed to the importance of this issue. The Full Court was entitled, and indeed was bound, to decide whether the appeal was arguable on the material that was placed before it. On that material no arguable case was demonstrated. We would therefore dismiss the present appeal.
The Full Court of the Supreme Court of Western Australia declined an application, brought on behalf of an infant appellant, to cure a default by her then solicitors in complying with a procedural rule [35] . Instead, that Court acceded to an application by the respondent to dismiss the appeal for want of prosecution without a full hearing on the merits. It did this without having before it the transcript of evidence taken at the trial. The Full Court thus terminated an appeal which, but for the procedural default, would have been heard as of right. By special leave, its orders are now challenged in this Court.
Bronita Jackamarra (the appellant) was born in November 1984. Her mother, and next friend, Ms Stella Jackamarra, was only fifteen years of age at the time. The child's natural father is Mr William Krakouer. He is the first respondent to this appeal. He owned a motor vehicle which was insured against third party risks by the State Government Insurance Commission (the Commission). Before this Court and in the Full Court, the Commission alone was represented to resist the appellant's application and to support the termination of her appeal.
Ms Stella Jackamarra came from Carnarvon to Perth in 1984 to attend school. She commenced a relationship with Mr Krakouer as a result of which she became pregnant with the appellant. It was not until the appellant was some three months old that Ms Stella Jackamarra had further contact with Mr Krakouer. After that, Mr Krakouer visited two or three times a week. In August 1987, she suggested to Mr Krakouer that he take the appellant, then aged two years and nine months, to Mt Barker, where his family lived, so that the child could get to know them. She later recalled that, two weeks before the trip, Mr Krakouer had complained that the brakes of his car were playing up and jamming. When the appellant was put in Mr Krakouer's car to commence the journey to Mt Barker the evidence was that she was uninjured. There was no proper child restraint in the car suitable for the child's safe carriage.
At about 5 pm on 31 August 1987, Dr M J Christensen, a general practitioner in Mt Barker, saw the appellant who was brought to his surgery by Mr Krakouer. As recorded by the doctor, Mr Krakouer described a car incident which had occurred half an hour earlier, just outside Mt Barker. Allegedly, Mr Krakouer's car had been involved in a violent episode of braking. As a result, the appellant had been flung against the dashboard of the car from the position she had been in, lying on the front seat. The child was found to have suffered a serious head injury. This necessitated radical intervention by Dr Christensen. The child was transfered to a District Hospital and later to the Princess Margaret Hospital in Perth. There, she came under the care of a number of neurologists and paediatricians. What might otherwise have been an uncomplicated negligence action against Mr Krakouer, for which the Commission would have been liable to indemnify him, soon began to take on a different complexion.
A number of photographs were taken for the Princess Margaret Hospital file. These showed injuries to five areas of the appellant's body. The principal injury was to the top of the head. An area of hair was shaven revealing "red linear marks running parallel". There was also bruising to the appellant's jaw which was described, on 1 September 1987, as being "over 24 hours old but less than a week". There was bruising to the left ear. A fingertip of the appellant's right hand suggested injury caused possibly by crushing. On the appellant's stomach there were fairly large blue bruises considered to be between two and seven days old. In addition, the appellant had a retinal haemorrhage in two areas of the right eye. All medical consultants dealing with the case became suspicious that it was one of deliberate child abuse.
The predicament of the appellant could not have been more acute. She was undoubtedly seriously injured. By reason of her age and injuries, communication with her was so difficult that there could be no reliance on her evidence to describe what had occurred. Her mother was unable to help, beyond describing her condition when she was placed in Mr Krakouer's car. The latter gave a succession of histories disclosing significant differences. Initially, to Dr Christensen (and Dr Duncan at the Princess Margaret Hospital) he said that the braking incident had occurred at 4.30 pm on the day in question. It was claimed that the appellant did not lose consciousness immediately, but went shopping with Mr Krakouer to buy a dress, only later becoming unconscious at the time she was presented to Dr Christensen at 5 pm. Subsequently, Mr Krakouer told the mother that there had not been a lucid interval. When questioned by an investigator for the Commission (Mr Ronald Sarre), Mr Krakouer denied that a braking incident had occurred. Later, he accepted that it had happened but claimed that the appellant had hit her head on the side pillar between the two doors of the car, her seat being inclined. In answer to interrogatories administered for the appellant, Mr Krakouer claimed that he had not actually seen the appellant come into collision with the car when it braked, as he was concentrating on controlling the car. After the incident, he saw her lying on the floor of the car in front of the passenger seat, apparently unconscious. The presence or absence of a lucid interval was considered to be medically significant. The experts expressed the opinion that, if the appellant had been injured in the motor vehicle as a result of being thrown violently against the dashboard so as to receive the serious injuries found, a lucid interval, even of half an hour, was unlikely, bordering on the impossible.
The appellant is an Aboriginal Australian. Her mother obtained legal advice, on her behalf, from the Aboriginal Legal Service (ALS). On 10 October 1992, a writ was issued out of the District Court of Western Australia claiming damages against Mr Krakouer. Subsequently, the Commission was joined as a second defendant and Mr Krakouer was separately represented. In essence, the Commission's case was either that the appellant's injuries were caused by child abuse for which it was not liable or that the appellant could not establish, on a balance of probabilities, that her damage, or any of it, was occasioned by trauma arising out of the use of Mr Krakouer's motor vehicle, for which use alone it was obliged to indemnify him.
The appellant's claim was heard in the District Court of Western Australia by Commissioner Dawes. The trial took place in June and July 1995. Judgment was delivered on 7 August 1995.
The Commissioner recounted the appellant's medical histories and the medical opinions set out above. He described the way in which he had permitted the appellant's case to be reopened to allow evidence to be given by Mr B A R Stokes, a neurosurgeon. This was at variance with the evidence given earlier by treating doctors and qualified experts. In Mr Stokes' opinion, it was quite possible that there had been a lucid interval between injury and loss of consciousness. Furthermore, bleeding at the back of the eye into the retina, which other medical experts had considered to be a typical outcome of violent shaking of the child, could, in Mr Stokes' opinion, equally have been caused by simple intracranial pressure typical of extreme brain swelling occurring in a child, even after a relatively mild head injury. There was therefore a clash of medical testimony to be analysed and resolved. In the result, the Commissioner preferred the evidence of the other experts to that of Mr Stokes.
It was then necessary to unravel the conflicting versions of events successively given by Mr Krakouer. The Commissioner recorded these. He noted a challenge to the admissibility of the evidence of Mr Sarre, given that Mr Krakouer had not given evidence in the trial. He ruled that the evidence was admissible [36] . Once admitted, that evidence added two further versions of events to complicate the process of fact-finding.
The Commissioner proceeded to his conclusion. Although, as he noted, the mother's recall of the conversation with Mr Krakouer about the way the injuries to her daughter had occurred had not been challenged at the trial, he concluded that she had "unconsciously transposed a much later account by [Mr Krakouer] back to 1 September 1984". He found that the report of Drs Christensen and Duncan, supported by contemporaneous written records, was more likely to be the accurate one. He attributed the later versions given by Mr Krakouer, which deleted mention of the lucid interval, to a belated appreciation by him of the significance of such an interval as rendering trauma in the motor vehicle less likely, and hence other more sinister trauma a more likely explanation of the appellant's undoubted injuries.
In the light of the medical evidence which he preferred, the Commissioner concluded that he could not accept any of the conflicting accounts of injury given by Mr Krakouer [37] :
I do not accept that on a balance of probability the plaintiff suffered her severe head injury as a result of the first defendant's negligent driving. I think it just as likely, if not probable that the plaintiff suffered that injury as a result of some deliberate act of abuse. The fact that the plaintiff was found to have bruises on various parts of her body in unusual positions ranging from ages of less than twenty four hours to up to seven days called for investigation, as did the likelihood that the child was shaken. 1. Jackamarra v Krakouer (unreported; District Court of WA; 7 August 1995) at 28, per Commissioner Dawes.
It was from this decision of the Commissioner, and the order dismissing the appellant's claim which followed, that the appeal was taken to the Full Court of the Supreme Court of Western Australia.
The appeal to the Full Court was filed promptly on 14 August 1995. Three days later, the Commission signified its intention to defend by filing a Notice of Intention to be Heard. Although Mr Krakouer had been represented before the Commissioner, his representative had taken no substantial part in the trial. There was no appearance for him in the appeal. On 31 August 1995, the Commission's solicitors suggested to the ALS that, because the Commissioner had severed and dealt separately with the issue of liability, the judgment entered by him was interlocutory and thus the appellant required leave to appeal. In consequence of this suggestion, on 7 September 1995, the ALS, on behalf of the appellant, filed an application for leave to appeal. That application was heard by the Full Court on 19 October 1995. On 10 November 1995, that Court ruled that the Commissioner's order was final and so did not require leave. Having occasioned this unnecessary interruption to the progress of the appeal, the Commission's solicitors, unsurprisingly, consented "to a reasonable extension of time" for the appellant to enter the appeal for trial. The solicitors suggested a period of two months "from the time when the relevant period last expired".
The procedure for the setting down of an appeal for hearing is established in Western Australia by the Supreme Court Rules (O 63, r 7). Relevantly, the rule requires that, unless the Full Court or a judge otherwise orders, an appeal must be entered for hearing "before the expiration of 12 weeks from the institution of the appeal". It was agreed between the parties that the extension of time granted by the Commission would have expired on 6 February 1996. It was common ground that, by that time, no step had been taken by the appellant to have the appeal entered for hearing.
Nevertheless, on 7 March 1996, before any other step was taken, a draft appeal book index was filed. It was not served on the solicitors for the Commission until 12 April 1996. An appointment with the Registrar to settle the appeal book index was procured for 18 April 1996. However, at that appointment, the Commission's solicitor notified the ALS that two days earlier he had filed a motion in the Full Court for an order dismissing the appeal for want of prosecution. This notwithstanding, the appeal book index was settled by the Registrar on 28 May 1996. On 15 July 1996, the ALS filed a motion in the Full Court. This sought an extension of time within which to enter the appeal for hearing. That motion was accompanied by an affidavit by the solicitor employed by the ALS. By this affidavit, the solicitor deposed to the pressure of caseloads, the imposition of additional administrative responsibilities, necessary court attendances and the answering of telephone queries which had impeded the preparation of the appeal documents on time. As well, there had been delays in preparing the appeal book index in accordance with the Rules (O 63, r 13). The solicitor's affidavit concluded by pointing out that the appellant was then eleven years of age and suffering from severe brain damage. The limitation period in respect of her cause of action "would not have expired until the year 2008". The appellant and her mother were described as living "at the remote Western Australia town of Fitzroy Crossing" where they did not have ready access to a solicitor. The affidavit concluded with a statement of the fact, obvious enough, that "the Appellant is in no way personally responsible for the delay in entering the Appeal for hearing". The delay in question (between the agreed date for the expiry of the extension and the application to the Full Court) was a little more than five months in all. Unless it was cured, by order of the Full Court (or if the Commission's motion succeeded), the claim of the appellant against Mr Krakouer would be extinguished for all time.
The Full Court refuses an extension and dismisses the appeal
When the matter was called on for hearing the Full Court turned first to the appellant's application for an extension of time. The presiding judge, Malcolm CJ, made it clear, early in the argument, that he regarded the delay of five months as "gross delay". He observed that the "appeal is likely to be struck out unless it is saved by its merits" [38] .
The critical issue relates to the merits of the appeal. In my opinion the appeal lacks any real prospect of success. This is a case where the apparent lack of merit in the appeal is in the end decisive. 1. (1989) 2 WAR 196. 2. Jackamarra v Krakouer (unreported; Supreme Court of WA (Full Court); 7 August 1996) at 19.
The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language [45] . In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case [46] . This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances [47] .
Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that "special reasons" or "special circumstances" be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary [48] . But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application [49] . Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to [50] . Inherent in the grant of a discretionary power is the assumption that it will sometimes be refused.
Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (dec'd) [51] , Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 UK with procedural rules typically found in rules of court: [T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. For the purpose of this classification, which I accept, it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party's appellate rights.
The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused [52] . However, this is basically because to grant it would be futile. The practice ordinarily adopted in judging the arguability of a point was described by Lord Denning MR for the English Court of Appeal in R v Secretary for the Home Department; Ex parte Mehta [53] . It ordinarily involves consideration of "the outline of the case": We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. This description accords with my own experience of Australian practice. It appears to accord with that of the Federal Court of Australia where Mehta was cited and applied [54] . In Esther Investments [55] , Seaman J, talking of the practice of the Supreme Court of Western Australia, said that the assessment of the merits was necessarily "broad" because the Court, on an application to extend time, will ordinarily have only "limited materials and argument". Reason and efficiency support this practice. On an application to cure a procedural time default, the parties are entitled to expect that the court will deal with procedural issues and not without warning or consent turn the motion into the substantive hearing of the appeal. Were that to be a common practice, the time of the courts in reviewing the factual and legal details of cases might be doubled - first in the practice list and then, if the matter were allowed to proceed, in the substantive hearing. That would not be an efficient use of the court's time or of the parties' attention to the case. Moreover, it could work an injustice on a party if a telescoped hearing, which should primarily be addressed to a procedural question, were converted into the determination of issues of complexity and substance, the proper treatment of which may require more time than is typically available in a busy practice court.
Judicial attitudes to the grant of an indulgence under procedural rules of court have changed somewhat since the rather rigid approach which formerly marked such decisions [56] . The change came about as it was realised that such rules were themselves only intended to contribute to the attainment of justice [57] . That object necessitates a flexibility which accepts "the fallible world in which legal disputes arise and in which they must be resolved" [58] . Judges have warned against permitting the rules of court, particularly those relating to time, to become "an instrument of tyranny" [59] . This judicial attitude produced a less "draconian" [60] practice which tended to focus attention on the need for a measure of flexibility, the avoidance of undue technicality and the consideration of whether there was any actual prejudice to a party if the indulgence were granted, beyond that inherent in the continued prosecution of the proceedings [61] .
In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon a stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts [62] . Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd [63] countered the applicant's submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort: To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. "To no one will we deny or delay right or justice" [Magna Carta, ch 40].
All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it.
More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits [64] . Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires [65] .
In Esther Investments [66] , the Full Court of the Supreme Court of Western Australia embraced, as relevant to applications for an extension of time, the four "major factors" which had been identified in Palata Investments Ltd v Burt & Sinfield Ltd [67] , viz, the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. It was those principles which the Full Court applied in the present case. I would point out that Palata Investments was concerned with an application for an extension of time for appealing, not for extending the period within which an appeal, already lodged within time, might be entered for hearing. The distinction is important. In the latter case, the scope for review of the merits is necessarily more limited. The main object of the scrutiny is to obviate a hearing which would clearly be futile or to reinforce a preliminary view that a time default should be cured because of the apparent merits or arguability of the matter. I do not doubt that the four considerations mentioned in Esther Investments are relevant. But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious [68] ; or merely the result of a bona fide mistake or blunder [69] ; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled [70] . It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.
Where it is appropriate to conduct a preliminary assessment of the arguability or suggested futility of an appeal, it is necessary to bear in mind the principles of appellate review applicable to the case. Where, as in this case, the appellate court has, by statute, a right and duty to reconsider the decisions of fact and law made at the trial, the breadth of the court's functions has been stated many times [71] . Of course, if the decision of the primary judge turned on the credibility of the evidence of witnesses called at the trial, the difficulties of disturbing conclusions based upon such findings are well known [72] . Nevertheless, even in such cases, findings of credibility can sometimes be overcome [73] . Conflicts of medical and other expert testimony are not, in my view, ordinarily susceptible to resolution by simple credibility assessment [74] . A party, having an appeal as of right which it has exercised by filing a notice of appeal within time, is normally entitled to have the appeal heard and determined on its merits by the painstaking examination of evidence and argument. That is an entitlement which the appellant has been overcome of in this case.
When the decision of the Full Court is measured against the foregoing considerations, I am regretfully led to the conclusion that it erred in a matter of principle which authorises and requires the intervention of this Court.
The appellant had lodged her appeal within time. The time default which occurred was in no way one of her own making. As the solicitor for the ALS admitted, it was entirely her error for which it would be wrong to burden the appellant: an under-age Aboriginal child, living in a remote place without direct access to legal advice and suffering serious mental disabilities by reason of brain injury, however caused.
By filing her appeal promptly, the appellant secured the right to an appeal by way of appellate rehearing. That involved a full and thorough review of the Commissioner's decision including on matters of fact. It was a right which could be lost where there was noncompliance with the rule for the prompt setting down of the appeal for hearing. But that rule is clearly one of procedure only. Its object is to ensure the efficient despatch of business. As such, it does not concern the substantive rights of any party.
The discretion to extend time would therefore, in such a case, more readily be granted than in most others, particularly because the default was that of the party's legal representative alone. Whilst the appellant carried a burden of persuasion, it was not one which, in the circumstances, was particularly heavy. An explanation for the default was given. It was not challenged. There was no element of deliberateness in the delay; quite the contrary. The overall delay was itself relatively short and to some extent occupied by steps in furtherance of the appeal. At all times the Commission knew that the appellant wished to proceed with the appeal. To some extent, its suggestion that leave to appeal was required put the solicitors for the appellant to the unnecessary diversion of a hearing on that question which might have deflected attention from the routine preparation for the appeal as required by the Rules.
It is perfectly true that the appellant, on the face of the reasons of the Commissioner, appears to have substantial difficulties in the way of succeeding in the appeal. But no final conclusion could be reached on such a matter without the transcript and a more detailed review of the issues and argument than was possible in the Full Court's consideration of the two motions before it. In the absence of the transcript, I do not consider that it was open to the Full Court to make the purported evaluations which it did of the evidence, the judgments of the effect of the evidence on the outcome, the assessment of the possibility of overturning the medical evidence or the conclusion that findings recorded in the stated reasons of the Commissioner were "fully justified", that is, justified presumably by the evidence. The scrutiny of transcript in cases of this kind is often a tedious and sometimes a rather unrewarding judicial task. But it is the common task of appellate review. It was the task invoked by the appeal in this case. Only the procedural time default stood in the way. If the Full Court considered that the application for an extension of time should have been converted, in effect, into a hearing of the appeal on its merits, the proper course was to notify the parties, to require the provision of the full transcript and, if asked, to afford the parties time to prepare for argument of a significantly different proceeding than that which they had come to prosecute.
I do not see that the Commissioner's determination of the medical evidence which he preferred stands in the path of appellate review. As I read the Commissioner's reasons, he did not purport to decide that question on the basis of credibility but, as is usually preferable, by the application of logic and reason. The same is true of the Commissioner's assessment of the versions given by Mr Krakouer, who gave no oral evidence at the trial. An appellate court, provided with the same evidence, can perform the function of considering the evidence just as well.
There was no separate treatment by the Full Court of the application by the Commission for an order dismissing the appeal "for want of prosecution". That motion was apparently granted as a consequence of the dismissal of the appellant's application for an extension of time. For like reasons, I regard such an order as erroneous in the circumstances. The appellant never abandoned her wish to prosecute the appeal. The procedural mistake which provided an impediment ought to have been cured. The factors supporting a favourable exercise of the discretion were overwhelming. The one suggested obstacle (the ultimate merits of the appeal) was inappropriately elevated, without the necessary materials, from a broad evaluation of the likely prospects to a conclusive determination.
In the event that this Court concluded that the orders of the Full Court had miscarried, both parties asked that this Court exercise the discretion which the appellant had invoked. It is sensible to conform to that request.
I therefore agree in the orders proposed by Brennan CJ and McHugh J.
Jackamarra (an Infant)
Krakouer
(1986) 12 FCR 187
(1989) 2 WAR 196
(1962) 36 ALJR 200
(1990) 64 ALJR 458
(1993) 67 ALJR 678
(1935) 52 CLR 713
(1962) 107 CLR 9
(1997) 189 CLR 146
(1964) 112 CLR 125
(1949) 78 CLR 62
(1990) 171 CLR 167
(1993) 177 CLR 472
(1981) 148 CLR 170
(1966) 117 CLR 423
(1983) 69 FLR 386
(1995) 38 NSWLR 476
(1957) 96 CLR 469
(1979) 142 CLR 531
(1986) 7 NSWLR 1
(1993) 31 NSWLR 1
(1991) 23 NSWLR 288
Appeal allowed; orders of the Full Court set aside; time for entering the appeal extended to six weeks from the High Court order; second respondent's motion to strike out stood over generally with liberty to restore if the appeal not entered within time; appellant to pay second respondent's costs in the Full Court; second respondent to pay appellant's costs in the High Court.