NANCY CLOONAN HALL v JOSEPHINE MARY ANDERSON ANDERSON & ANOR

" Out of this evidence I accept that Ms Hall lodged an incomplete notice of appeal on 28 November and that she was told she would have to provide an additional page incorporating an appointment clause in accordance with the requirements of the Rules and the prescribed form. I do not accept her suggestion that she was told on 28 November that the notice of appeal had been "accepted". There would be no reason for that statement to be made to her at that time. Although I have some reservations about the evidence relating to Mrs Campbell, I consider that the course of correspondence is capable of supporting a finding on the balance of probabilities that Mrs Campbell was deputed by Ms Hall to deliver the final page and that at some time during the day on 29 November, Ms Hall made a telephone call to the Registry Office to check that this course would be appropriate. It appears, however, from her own fax of 8 December, that Mrs Campbell left the page on the counter at closing time and did not deliver it to anyone in the Registry office. The only people she spoke to, it seems, were people actually leaving the Registry at the time. This account is consistent with Mrs Campbell's letter to the Court which was received as an exhibit." His Honour later said:

"The more likely explanation is that if the document was left at the Registry at closing time and not given to anybody, it was never identified as belonging to the appeal notice and went astray."

The primary judge indicated, as is the case, that had Ms Hall taken reasonably prompt steps to seek leave to file her notice in time, then delay of itself would be unlikely to prove fatal to her application. In fact, the application for an extension of time was not lodged until fifteen months after the expiry of time for lodging of her appeal. Further, in 1995, in correspondence to her from the registry, Ms Hall was informed of the necessity to obtain leave to file and serve a notice of appeal which was out of time. The primary judge accepted that there was an horrific series of events experienced by Ms Hall during 1996. Notwithstanding those traumatic events, his Honour said:

"I do not accept that the delay in this matter...is to be explained by the horrific series of events to which she referred in her evidence. There is no convincing or reasonable explanation for the delay of 15 months in seeking an extension of time within which to appeal." The primary judge further had regard to the contents of the grounds propounded by Ms Hall and adverted to the findings of credibility by Carr J by saying:

"The prospect of a successful challenge to that judgment upon the basis of matters raised in her notice of appeal is small. In part she seems to seek to revisit the factual matters decided against her by the trial judge." As earlier indicated, Ms Hall forcefully contends that the factual conclusions reached by Carr J were wrong. In the light of the above matters, it is necessary first to have regard to O 52 r 15 of the Federal Court Rules which provides:

"15(1) The Notice of Appeal shall be filed and served -

(i) the date when the judgment appealed from was pronounced;

(iii) any later date fixed for that purpose by the court appeal from; or

(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

15(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."

Notwithstanding the vigour and extent of Ms Hall's criticism of the judgments of French and Carr JJ, there is no material before this Court to permit it to conclude that French J erred in applying legal principle in making his decision. In the absence of such an error, a discretionary judgment of the nature involved in the application for an extension of time within which to appeal should stand. As Kitto J said in Lovell v Lovell (1950) 81 CLR 513 at 532:

"If the judgment is affected by an error in point of legal principle, of course the error may be corrected. But leaving on one side mistakes of law (for it is conceded on all hands that the learned primary judge made no such mistake in this case), it is true to say of any appeal (other than one which is a re-hearing in the Quarter Sessions sense of the term) that the onus of showing that the decision under appeal was wrong lies upon the appellant: Powell v Streatham Manor Nursing Home (1935) AC 243, at pp 249, 255. The onus is particularly heavy where an attack is made upon findings of fact made by a judge who had the advantage of seeing and hearing the witnesses; in such a case each judge of the appellate court must put to himself the question: 'Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?': Watt or Thomas v Thomas (1947) AC 484, at p 488. And the onus is similarly heavy where the appeal is against an exercise of a discretion. 'A clear conclusion that the judge...was plainly wrong' is the sole justification for a reversal of his decision."

In Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1978] VR 257, McInerney J said of applications for extension of time in which to appeal in Victoria at 262:

"The object of the rule is to give the court a discretion to extend the time with a view to the avoidance of an injustice..."

In considering the meaning and application of O 52 r 15(2), the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187 said at 195:

"It should not be overlooked that r 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 and served." [emphasis added] In Gallo v Dawson (1990) 64 ALJR 458 at 459, McHugh J said:

"The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice."

See also the judgment of the Full Court of the Federal Court in Shields v Australia and New Zealand Banking Group (unreported judgment, Federal Court of Australia, Sheppard, Lee and Sackville JJ, 27 October 1995). In the absence of demonstrable error of legal principle in the discretionary judgment to refuse an extension of time in this case, an appeal would be dismissed. However, in this case, the appeal is incompetent. Section 25(2) of the Federal Court of Australia Act 1976 ('the FCA Act') provides:

(a) for leave or special leave to appeal to the Court; or

(b) for an extension of time within which to institute an appeal to the Court; or

(c) for leave to amend the grounds of an appeal to the Court; or

may be heard and determined by a single judge or by a Full Court."

A single judge in hearing and determining any such application is exercising the appellate jurisdiction of the court. Whether the order made by French J is interlocutory or a final order, no appeal, either by right or by leave is available to Ms Hall. In Reid v Nairn (1985) 60 ALR 419, the Full Court of the Federal Court (Fox, Forster and McGregor JJ) concluded that both an application for leave to appeal against an order granting limited discovery by Fisher J and his subsequent refusal to grant leave to appeal against the order to the Full Court of the Federal Court were incompetent. The Court concluded that the reference contained in the words "unless the Court or a Judge gives leave to appeal" in s 24(1A) of the FCA Act imported a true alternative and was not progressive and thus it was not competent to appeal from a decision of a single judge refusing or granting leave to appeal. In Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, the Full Court held that when a single judge is exercising power under O 52 r 15(2), the judge is exercising the appellate jurisdiction of the court and not its original jurisdiction. The Court (Bowen CJ, Lockhart and Sheppard JJ) held that ss 24(1A) and 25(2) of the FCAAct, when read together, meant that an application might be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment. The Court concluded that the election was between two alternatives, neither progressive nor successive, and that once an order had been made granting or refusing leave, no appeal lay from that order. The power under O 52 r 15(2) of the Rules for "the Court or a Judge" for special reasons at any time to give leave to file and serve a notice of appeal involves a true alternative and not a progressive choice. A party wishing to apply for an extension of time within which to institute an appeal must elect between approaching a Full Court or a single judge. In our opinion, where a Judge has refused to give leave to file and serve a notice of appeal outside the period referred to in O 52 r 15, no appeal to the Full Court, nor an application for leave to appeal made to a Full Court, from the decision of the Judge refusing leave, is competent. It follows that the present appeal is not competent. The final matter relates to the question of costs. Order 52 r 18 relevantly provides:

"(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

(2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.

(3) If a respondent does not move under sub-rule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay the appellant any costs of the appeal proving useless or unnecessary."

In this case, it is accepted on behalf of the respondents that the respondents did not move in accordance with the time required pursuant to O 19 in respect of their motion that the appeals were incompetent. It follows that, unless the Court otherwise orders, the respondents are not entitled to receive any costs of the appeal, and the Court has power to order that the respondents pay the appellant any costs of the appeal proving useless or unnecessary. In the circumstances of this case, nothing is shown as to why the court should order otherwise than in accordance with the restrictions imposed by O 52 r 18(3). It may be that if a timely motion for an order dismissing the appeal as incompetent had been made, the appeal may not have been prosecuted, although given the personalities involved in this case, that would have been unlikely. As the Full Court pointed out in Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90, the effect of O 52 r 18(3) is to put the onus squarely on the respondent to an appeal to raise issues of competency at an early stage. In the circumstances of this case there is no proper basis on which the Court should order that the respondent receive any costs of responding to the incompetent appeal nor is there any reason to order that the respondent pay to the appellant any costs of the appeal. For the above reasons, the appeal should be dismissed as incompetent and there should be no order as to costs of the appeal. I certify that this and the preceding ten.(10) pages are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 18 July 1997

The appellant appeared in person. Counsel for the Respondent: Mr A Trichardt Solicitor for the Respondent: Mallesons Stephen Jaques Date of hearing: 15 July 1997