Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited

Principles 4 The principles bearing on an application for an extension of time in which to appeal are well-settled: see, for example, Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 per Nicholas J (at [4] and the cases therein cited). See also DZAAD v Department of Immigration and Citizenship [2013] FCA 204 per Foster J (at [28]). 5 The considerations usually relevant to the exercise of the Court's discretion under r 36.05 of the Rules include: (a) the length of the delay; (b) whether the applicant has provided an acceptable explanation for the delay; (c) whether there is any prejudice to the respondent; and (d) the merits of the appeal is an extension is granted. 6 The extent to which an applicant must explain its delay will depend on the circumstances. Where there has been a more lengthy delay, a far more detailed explanation will be required than where the delay is only short. However, the Court's discretion to refuse the extension of time remains unfettered, even if the delay is a short one.

CONSIDERATIOn 7 The applicants' application was accompanied by an affidavit from the solicitor on record for applicants, and sworn on 29 March 2018. The affidavit deposed to the circumstances surrounding the applicants delay in filing. 8 It is relevant to observe that: (a) the application was filed 5 business days outside of 21-day period prescribed under r 36.03 of the Rules; and (b) the respondents have not opposed the application and, therefore, there is no contention by the respondents that: (i) they suffer any prejudice from the delay; (ii) the explanation for the delay is unacceptable; or (iii) the merits of the application do not meet the requisite threshold established by the authorities. 9 In those circumstances, there being no demonstrable abuse or manifestly inarguable propositions in the draft grounds of appeal in this instance, it is undesirable to say more on the merits. They will be addressed by a Full Court if an extension of time is granted. 10 As the applicants submit, there are some similarities in the application to those circumstances which arose before Nicholas J in Pfizer. In Pfizer, the application was filed 4 business days out of time, which his Honour described as 'modest' (at [5]). There was also a similar absence of any contention by the respondent that they would suffer prejudice if the extension of time was granted or that the proposed appeal was untenable. 11 Turning to the cogency of the reason put forth by the applicants in the affidavit concerning the reason for the delay, it is demonstrably acceptable. The explanation is reducible to an understandable administrative error by the applicants' solicitor in inputting the relevant filing date into his calendar. 12 In these circumstances, particularly the modest length of the delay, an extension of time will be granted.

CONCLUSION 13 The time for the applicants to file an appeal will be extended to 1 June 2018. The costs of the application for an extension of time are to be costs in the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.