Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited

Federal Court of Australia|2018-05-22|Before: Nicholas J, Foster J, McKerracher J

The application for extension of time within which to lodge the appeal is granted and the time for the applicants to file their appeal will be extended to 1 June 2018.
The application to stay the order for costs in favour of the respondents is dismissed.
The appeal be listed before a Full Court in the August sittings in Perth.
The costs of the application for an extension of time are to be costs in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 This is an application under rule 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time in which to appeal the decision of the primary judge: Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2018] FCA 174. The applicants also sought to stay the order for costs made by the primary judge in favour of the respondents. 2 The applications were referred to me to determine. I directed the parties to file short submissions on these issues. The applicants provided concise submissions on the issue of leave. The respondents advised that they do not oppose (but do not consent to) the extension of time sought by the applicants and that, on that basis, they would not file submissions in this application. On the issue of the stay of the primary judge's order for costs, the applicants have since advised that they have paid to the respondents the outstanding costs order and therefore this issue is not pressed. 3 For the short reasons which follow, I will allow the applicants further time in which to lodge their appeal. The delay was brief. It has been explained.

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.

Federal Court Rules 2011(Cth)rr 36.03, 36.05

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