Jess, M.P. v. Scott, R.T. & Ors [1986] FCA 473

i} Outboard Marine Australia Pty Ltd v. Byrnes [1974] 1 NiS.W.L.R. Stollznow v. Calvert [1980] 2 N.S.W.L.R. 749

Witten v. Lombard Australia Ltd (1968) 88 W.N.(Pt 1) (nsw) 405 Morris v. Public Transport Commission, unreported, Moffitt P;,

Avery v. No. 2 Public Service Appeal Board [1973] 2 N.Z.

Martin v. The Nominal Defendant (1954) 74 W.N.(NSW) 121 Re Coles and Ravenshear [1907] 1 K.B. 1

Re Wolcott and Davis, unreported, Muirhead J., 14/12/84

Lockhart, Sheppard & Burchett JJ. Sydney 4 November 1986

D.-A. BEER, W.R. ARSCOTT, F. MCGOWAN, R.B. HAWKES, G. HARRISON, R.M. ADAMSON, H. MALCOLM, P. JOHNSON, J.F.

R. POINTER, M. TUMBERS, F. BASTOW, BURNS, J.A. VAUGHAN, M.K. HILL, J. WOODS

Upon the condition that the respondents' costs of the motion are paid by the solicitor for the applicant time for filing and service of a notice of appeal be extended until 14 August 1986 and that the filing and service of a notice of appeal which took place on that date be

taken to have been a sufficient compliance with this order.

Settlement and entry of orders is deait with by Order 36 of the Federal Court Rules.

R.T. SCOTT, J.G. KIDD, L. CARMICHAEL, G. CAMPBELL, R.A. BRUGGY, W. MARTIN, E. LIPSCOMBE, F. MAURICE, D.A. BEER, W.-R. ARSCOTT, F. McGOWAN, R.B. HAWKES, G. ADAMSON, H. MALCOLM, P. JOHNSON, J.F.

R. POINTER, M. TUMBERS, EF. BASTOW, A.J. MARKS, B.R. M.K. HILL, J. WOODS

Coram: Lockhart, Sheppard & Burchett JJ. Date: 4 November 1986

REASONS FOR JUDGMENT THE COURT On 23 July 1986 Wilcox J. delivered judgment dismissing

two proceedings brought by the applicant and ordering him to pay

to the respondents their costs of one of the proceedings. The

applicant's solicitor received, in due time, instructions to file and serve a Notice of Appeal to a Full Court of this Court. Because of a misunderstanding on the part of the applicant's solicitor as to the date of delivery of judgment, the Notice of Appeal was filed and served on the day after the last day limited for the filing of a Notice of Appeal under the Rules. Objection having been taken, the applicant lodged the application the subject of these reasons, in which he sought an extension of time pursuant to Order 52 Rule 15(2) of the Rules of the Court. At

the hearing of the application, we made an order under that

sub-rule, reserving our reasons, which we now deliver.

Sub-rule (1) of Rule 15 provides for the appeal period

of 21 days, and for its extension upon application made by motion upon notice filed within the period of 21 days. Sub-rule (2)

"Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal."

Although the sub-rule refers to the giving of leave to file and serve a Notice of Appeal, sub-rule (5) provides for the application to be made "in or substantially in the form numbered 540A in the First Schedule", and that form seeks, not a grant of leave to file and serve a Notice of Appeal out of time, but "an

extension of time in which to file and serve a Notice of Appeal".

It is further to be noted that, while sub-rule (2) refers to

"special reasons", sub-rule (6) is in the following terms:

"An application shall be accompanied by an affidavit showing -

(a) the nature of the case; {b) the questions involved; and

(c) the reason why leave should be given." (Emphasis added.)

Also, Rules 15 and 15A contemplate that an application may be sufficiently straightforward to be dealt with upon. the

presentation of a case and argument to the Court in writing.

In the matter under consideration, there was no challenge to the explanation by the applicant's solicitor of his mistake as to the date of delivery of judgment. He was not present in Court when judgment was delivered, and for some part of the relevant period was engaged upon another court case ina country town. No prejudice is suggested, the respondents' solicitor having been under the mistaken impression that the applicant had 28 days, not 21, in which to appeal. The case raises questions of some general importance, and there is no suggestion that the appeal is sought to be maintained mala fide or upon slight or foolish grounds. The solicitor for the applicant, accepting as he did with frankness the responsibility for the error which occurred, offered to submit to a condition of

the giving of leave under Rule 15(2) that he pay personally the

The respondents' opposition to the application was based substantially upon an argument that the words "for special reasons" in Rule = 15(2) should be given a_ - stringent

interpretation. It was urged there was nothing sufficiently

Although counsel for the respondents referred to a number of cases dealing with other rules of court, more or less differently worded, concerning the relaxation of appeal times, there appears to be little authority upon the Federal Court Rule in question. In Bishop v. R (1982) 40 A.L.R. 40, a Full Court of this Court dealt with an application to extend the time for service of a Notice of Appeal which had been filed within time. The majority of the Court (Bowen C.J. and Deane J.) expressed an

inclination to agree with the view of the Judge at first

instance, Fox J., that Order 52 Rule 15 was not applicable to~ - "~

such a situation, which was to be dealt with under Order 3 Rule

3. Davies J. directly held that Order 52 Rule 15(2) was not applicable. The decision of the Court turned upon the special circumstances of a Crown appeal against sentence, and upon the absence of any acceptable explanation of the Crown's failure to serve the Notice of Appeal within time. However at p.44 Davies g., referring to sub-rule (2) of Rule 15, said:

principle which has long been established in the law."

Since the cases establish, as we shall show, that leave to appeal out of time is to be determined by the Court's view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal

formula, this dictum does not support the respondents' argument.

But the respondents placed principal reliance upon the decision of Muirhead J. in Re Wolcott and Davis (unreported, 14 December 1984). In that case, leave having been sought and obtained to bring an appeal against an interlocutory decision, the applicants had then failed to file a Notice of Appeal within the time permitted by the order granting leave. Muirhead J. dismissed the applicants' application for an extension of time, which had been grounded substantially on the basis that the failure to file the Notice of Appeal within the requisite period was the result of their own solicitor's ignorance and his belief

that, where - leave- to appeal had been granted, no Notice of Appeal

solicitor to institute an appeal in time, caused by ignorance or negligence rather than by fortuitous circumstances, such as sickness er accident, constituted special reasons."

In Re Coles and Ravenshear [1907] 1 K.B. 1 the Court of

Appeal dealt with an application to extend time for appeal, the time having been allowed to expire because a solicitor had accepted an erroneous opinion of counsel that time would run

until a particular date. The Court refused the application,

which was brought under a rule in the following terms:

"No appeal to the Court of Appeal (in certain matters) shall, except by special leave of the Court of Appeal, be brought after the expiration of fourteen days."

Collins M.R. and Cozens-Hardy L.J. each said binding authority compelled the view that a mistake made by a solicitor was an insufficient ground under a rule expressed in those terms. But each would have granted an extension if the matter had been free

"T confess that, if the case were free from authority, and I felt myself at liberty to follow my own judgment in the matter, I should unhesitatingly allow the time to be extended. Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case."

"Therefore, where there has been a perfectly bona fide mistake, and no damage has thereby been done to the opposite party which cannot be sufficiently compensated by costs, I should, if the matter were at large, be of

opinion that special leave to appeal should be granted."

Both Collins M.R. and Cozens-Hardy L.J. referred to the changing

currents of decision in applications seeking dispensdtion from

the strict consequences of the Rules. Farwell L.J., on! the cther

hand,, agreed in the conclusion of the Court without sharing the regrets of the other Judges. Promptly after this decision, in Re a Debtor (1910) 55 S.J. 48, the Court of Appeal rejected an application for an extension of time in a case where a Notice of Appeal had been served within time, but entry of the appeal, and

deposit of a necessary security, had not been effected within

time owing to the appellant's solicitor having been unaware of

the requirements of a recent decision. The note in the

"The Court (Cozens-Hardy M.R. and Fletcher Moulton and Farwell LJdJ.) dismissed the application, holding that a mistake made as to the law by the legal advisers of the appellants did not constitute such special circumstances as to entitle them to an extension of time."

Those decisions are consistent with the attitude taken

in the earlier Victorian Full Court decision Fitzgerald v. The

Trustees Executors and Agency Company Limited (1892) 18 V.L.R.

521 where the Court accepted, in a judgment delivered by Higinbotham C.J., that a misapprehension appeared to have existed in the legal profession as to which of two rules, nominating different appeal times, was applicable to a particular type of proceeding, but held that an extension of time would not be granted without "special reasons or grounds for complying with the application"; in the circumstances, the Court plainly did not regard the consequences of a misapprehension as to the applicable

There has, however, been a considerable shift of judicial opinion, since the turn of the century, in favour of the approach preferred by Collins M.R. and Cozens-Hardy L.J. in Re

Coles and Ravenshear. In Stanton v. Laws [1934] W.N.(Eng.) 130 a

Divisional Court distinguished Re Coles and Ravenshear on the ground that the applicant's error (he instructed the filing of an

appeal at 5PM on the last day for appeal) was not an error as to

the meaning and effect of the Rule but as to the practice in the office of the Court! Humphreys J. (with-whom Macnaghten_J._ agreed) is noted as saying "that ordinarily applications to extend the time of appealing were regarded as matters for the unfettered discretion of the Court on the ground that in each case the decision of the Court must be based mainly on the circumstances.-peculiar to that particular case." That was, of

course, only a few years before the decision in Evans v. Bartlam

£1937] A.c. 473, in which the House of Lords emphasised the width of the jurisdiction to excuse default in the analogous case of a defendant seeking to have a default judgment set aside and to be let in to defend. In another analogous area of the law, the area of applications for extension of a time fixed by statute for the bringing of a particular proceeding, the modern view is that "a failure by a solicitor to take the proper steps could itself be regarded as establishing sufficient cause for an extension of

time": Martin v. The Nominal Defendant (1954) 74 W.N.(NSW) 121

at 125, per Walsh J. (See also Hall v. Nominal Defendant (1966)

117 C.L.R. 423 at 433; Wedesweiller v. Cole (1983) 47 A.L.R. 528

at 532; Hunter Valley Developments Pty Ltd v. Minister for Home

In Gatti v. Shoosmith [1939] 1 Ch. 841, the Court of Appeal again considered the effect of a solicitor's mistake upon an application for a grant of leave to appeal after the time for

appeal had expired. The Court emphasised that Re Coles and

Ravenshear was decided under a rule which dealt with the grant of

special leave. Under a rule which did not require a grant of

special leave, Greene M.R. at 844 referred to "the alteration in-

the rule as restoring to (the Court) that freedom of discretion,

the loss of which had been so much regretted." At 845 he cited an unreported decision of the Court of Appeal, given in 1923, in which Scrutton and Atkin LJJ. had said "that the '''vested interest' argument no Longer carried the same weight as formerly and that the time for appealing was now constantly extended in

cases where twenty years ago it would not have been." Greene

"On consideration of the whole matter, in my opinion under the rule as it now stands, the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the Court in exercising its discretion. I say 'may be,' because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What TI venture to think the proper rule which this Court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion o£ the, Court being, as I conceive it, a perfectly free one, the only question is whether, upon the-facts of this particular case, that discretion should be exercised." r Since that decision, the course of authority in England seems to

it have been uniform. In Salter Rex & Co. v. Ghosh [1971] 2 Q.B.

"So Dr. Ghosh is dut of time. His counsel admitted that it was his, counsel's, mistake, and asked us to' extend the time: The difference between two weeks and four weeks is not much. If Dr. Ghosh had any merits which were worthy of consideration, we would certainly extend the time. We never like a litigant to suffér by the mistake of his lawyers." i '

In Regina v. Secretary of Stajte for the Home Department, Ex parte

Mehta [1975] 1 W.L.R. 1087 |the Court of Appeal (Lord Denning M.R., Browne and Geoffrey Lane LIT.) considered the effect of

Rule 11(4) of the Immigration Appeals (Procedure) Rules 1972

which made provision for an\appealliout of time in the following

+++ the appellate authdrity shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by rdgason of special circumstances, it is just and right so to do." 4 ' | ni '

Lord Denning, stating the reasons of the Court, said at 1091: 1 "one of the special 'circum

fact that the omission was the mistake of Miss Mehta's solicitors. It was said that the mistake of her solicitors could not amount to 'special circumstances' within rule 11. I do not agree. In applying rule ll, I should have thought that the appellate authority might well adopt the practice which we adopt in this Court of Appeal here. We are often asked to extend the time of giving notice of appeal. We never let a party suffer because his solicitors make a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending the time: see Gatti v. Shoosmith [1939] Ch. 841. ...

One other point. The tribunal said that they must come to a consideration on the preliminary point without regard to the substance or merits of the appellant's appeal. That also is too strict a view. Here again I think the appellate authority might well follow the practice in this 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

acccordingly. 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.

In short, the rule gives the tribunal a discretion to do what is just and right. It should be liberally interpreted by them so as not to let an appellant suffer unfairly.

This seems to me to be a case where the tribunal have erred in point of law and it is a case for certiorari to issue. ...

indeed an erroneous view of the wording of the rule."

Ex parte Mehta is of particular interest for present

purposes because of the presence in the rule there considered of

the words "by reason of special circumstances", which correspond

to the words in Rule 15(2) "for special reasons", and indeed might be thought, 'if anything, to pose a somewhat more stringent

In Palata Investments Ltd v. Burt & Sinfield Ltd [1985]

2 All E.R. 517 the Court of Appeal was concerned with yet another variation upon the theme. A practice direction had been issued in respect of appeals to the Court of Appeal (see [1982] 3 All

"In view of the importance of parties knowing whether a judgment is final or is still subject to possible appeal, it will only be in exceptional cases that such leave will be granted."

An appeal had been lodged three days out of time by reason of the overlooking by counsel and solicitor of an alteration of the time permitted for appeal. Ackner L.J., delivering the judgment of

"We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case. No doubt

in some cases it may be material to have - regard to the merits of the appeal...

The whole of this matter, it seems to me, depends on whether or not we can properly look on the delay in this case as being an exceptional one. In my judgment I would so -"" glassify it. I have already referred to the shortness of the period involved: three days. I have already referred to the fact

that the plaintiffs' solicitors knew that there was in all likelihood to be an appeal,

proceeding on the false assumption that they had achieved finality for their client. I have referred to the fact that the solicitors asked specifically of counsel for a statement of the length of time for serving the notice and that he gave them a clear statement that it was six weeks. There is the additional point that, not content with that, they checked and it was only the mischance that the new edition of The Supreme Court Practice arrived a few weeks later that stopped them appreciating that counsel was in error. There is no question of any prejudice arising to the plaintiffs in the circumstances which I have described, and in that situation there was in my judgment absolutely no need to go into the complex and time consuming question whether or not there was a good arguable case on the appeal."

In the context of a statutory power, based upon the existence of "special circumstances", to grant administration otherwise than to the applicant executor, Ewbank J.

"Speaking for myself, since this is a section giving discretion to the court, I would not impose any limitation on the words 'special circumstances. ' I would say that the words "special circumstances' are not necessarily limited to circumstances in connection with the estate itself or its administration, but could extend to any other circumstances which the court thinks are relevant, which lead the court to think that it is necessary, or expedient, to pass over the executors."

On appeal, the Court of Appeal ([1982] 1 Ch. 456 at 476), ina

"We agree with the judge that there were special circumstances. There are no grounds for interfering with his decision."

Each of the last three cases gives a very different effect to a provision containing the word "special" or the word

"exceptional" from that given by Chamberlain J. in Reid v.

Cloosterman (No. 1) [1971] S.A.S.R. 295 (a case relied on by the

respondents) to a provision for extension of time for appeal for "some special reason not arising from the fault of the proposed appellant". But in that case there was no discussion of relevant authorities, and the decision is distinguishable having regard to the very particular context in which the words "some special

The modern practice in the Supreme Court of Victoria, in relation-to applications for extension of time in which to

appeal, is set out in the judgment of McInerney J. in Hughes v.

National Trustees Executors & Agency Co. of Australasia Ltd. [1978] V.R. 257. At 262-3 McInerney J. said:

discretion to extend the time with the view to the avoidance of an injustice...

One object of fixing times under the rules is to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer 'at risk' ...

Higinbotham, J., referred to the interest of litigants in achieving finality of determination when he said, in Youngman v. Melbourne Storage Co. Ltd. (1885) 7 A.L.T. 53 at p.54:

'When the time has been allowed to elapse that gives the defendant a vested interest in the judgment, and this vested interest ought not

• to be disturbed unless there is some good reason for disturbing it.' The phrase 'good reason' imports, I think, a consideration of whether justice as between

the parties is best served by granting or refusing the extension sought...."

While this passage, as a whole, evinces an approach similar to that of the English Court of Appeal, it places some emphasis on the "vested interest" argument, supported by an authority from the last century. Gatti _v. Shoosmith shows that that argument was, as early as 1923, relegated by Scrutton and Atkin LdJ. to a lesser place, among the relevant considerations,

In Hughes' Case at p.263, McInerney J. distinguished the situation which arises under a rule referring to "special leave", which he thought would require "something special in the circumstances e.g. that the case involves an important question of law...". Of course, the phrase "special circumstances" may have aoparticularly stringent connotation when used with reference to an application for special leave, but even in an

application for special leave a broader view has been taken by

judgment of Reynolds, Hutley and Bowen JJA. in Outboard Marine

Australia Pty Ltd v. Byrnes [1974] 1 N.S.W.L.R. 27 at 30 includes

"We appreciate that the Rules of Court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time."

The general approach of that Court to cases where a solicitor's default is put forward as the explanation for serious delays is also expounded in Stollznow v. Calvert [1980] 2 N.S.W.L.R. 749, in which particular reliance is placed upon the view of Walsh J., expressed in Martin's Case (supra) and also in Witten v. Lombard Australia Ltd. (1968) 88 W.N.(Pt 1)(NSW) 405 at 412, that the Court's discretion should not be trammelled by set rules, but should be exercised wherever sufficient cause is shown upon an examination of the circumstances of the particular case. This approach was confirmed in Morris v. Public Transport Commission

(unreported, Moffitt P., Glass and Mahoney JJA., 28 May 1984),

where time was extended, in unusual circumstances, six years after a Notice of Appeal had been inadvertently filed one day outside the prescribed period. Moffitt P. (with whom Glass JA. agreed) held the Notice of Appeal was irregular, but not a

nullity. He said that if the irregularity had been perceived

not have been adjusted by an order extending time. +.. The modern practice is directed to avoiding technicality and instead seeks to look to the actual prejudice arising from departures from procedural rules. eee In the end it is a question of what is just between the parties. The negligent delay by - a plaintiff's solicitor may operate against a plaintiff, but the blamelessness of a plaintiff personally for delay has to be weighed with such negligence and other relevant facts."

In New Zealand, even a rule that "except... by special leave of the Court of Appeal, no appeal... shall be brought after

the expiration of three months" has not prevented Gatti v.

Shoosmith being accepted as the governing authority: Avery v.

No. 2 Public Service Appeal Board [1973] 2 N.Z.L.R. 86 at 91. In

Avery's Case at 92, Richmond J., delivering the leading judgment of the Court of Appeal constituted by Turner P., McCarthy J. and

"Everything is left to the discretion of the Court on the wide basis that leave may be granted in such cases as the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved."

It is useful to consider the meaning and application of Rule 15(2) against a background of an understanding of how other. courts have applied corresponding rules. But in the end, this

Court must construe and apply the terms of its own rule. The

question is what that rule means, and how it is to be applied to

• It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed
• the provision of a time for lodgment of an appeal, but the

provision also of a discretion to permit an appeal out of time

where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council,

put it in Ratnam v. Cumarasamy [1964] 3 All E.R. 933 at 935:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of

What is needed to justify an extension of time is indicated in Rule 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In

that context, the expression "special reasons" is intended to

distinguish the case from the usual course according to which the

time is twenty-one days. © But it may be so distinguished (not

necessarily will, for the lrule gives a discretion) wherever the

Court sees a ground which does justify departure from the general ' -

rule in the particular case. S.ich a ground is a special reason

because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something

The proposition cannot be accepted that rule 15(2) was intended to constrict the broad measure of justice for the

individual case which the Court could award upon the principle of

Gatti v. Shoosmith. No return was contemplated to the old law by

which the discretion of the Court to waive the rules was itséIf ~-- fettered by further rules. We agree with the dictum of Davies J.

cited earlier in these reasons, and we think the construction of the rule we have adopted is in line with the decisions in Ex

parte Mehta, the Palata Investments Case and Avery's Case.

It should not be overlooked that Rule 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a

departure, in the particular circumstances, from the ordinary

rule prescribing a period within which an appeal must be filed

As Walsh J. emphasised, a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of -other--circumstances, as. requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.

In the circumstances of the present case, which have been outlined at the commencement: of these reasons, we formed the view that there were plainly special reasons which justified the making of the order sought. In our discretion, we made it subject to the condition, which the applicant's solicitor offered

to accept, that the respondents' costs of the application be

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the court.