Russell, N.R. v. Australia & New Zealand Banking Group Ltd [1985] FCA 29

3. I order that the appellant pay the respondent's costs of the application made by the appellant's notice of

BETWEEN: NEIL ROBERT RUSSELL Appellant | So ~ 7 AND: += AUSTRALIA _& NEW ZEALAND _BANKING

REASONS FOR JUDGMENT (ON APPLICATION TO SET ASIDE NOTICE OF APPEAL)

on 13 November 1984, Morling, J. made a sequestration order in "respect of the estate of the appellant on the petition of the respondent. The appellant appeared in person before Morling, J. but on 29 November 1984 he instructed his solicitors to appeal against the

making of the sequestration order. 'On 3 December 1984, the

On 5 December 1984, the respondent's solicitors received through the document exchange a letter from the

appellant''s solicitors dated 4 December 1984 in these terms:

"We enclose herein a photocopy of the Notice of Appeal we have filed on behalf of our client.

Would' you please. advise whether you are . instructed to appear on behalf of your client in the Appeal or whether you wish us to serve your client directly | with the Notice. - : . : :

_ On 20 December 1984, 'the ° respondent received a letter from the appellant's solicitors dated 14 December

"We enclose herein by way of service our client's Notice of Appeal.

We note that this appeal relates to Bankruptcy proceedings commenced by your company. Your company's solicitors in the Federal Court were Messrs. Dawson Waldron & Co. - their reference: 18;CdJG 1438/78."

By its notice of motion filed on 30 January 1985, the respondent now moves the Court for orders that the notice of appeal has not been duly served upon the. respondent and that the notice of appeal be set aside. For his part, the appellant by his notice of motion filed 6 February 1985 seeks an order that the time for service of

the notice of appeal be extended until 22 February 1985.

By Order 52, v.12, an appeal shall be instituted by

filing a notice. of appeal in the prescribed form. By Order 52 4.15, the notice of appeal shall ° be filed and served within 21 days after the date when the - " judginent 'appeared *

"It. is common ground that "although the' "notice of appeal was filed within time, it was not served within the time prescribed by the rules: " the 'respondent' $ solicitors address was the address notified for service, but, because the document exchange was used, by virtue of Order 7 r.4(3) the notice of appeal is not deemed to be served until two days after the document is left with the exchange. However,

the wording of Order 52 makes it clear that an appeal is instituted by the filing of the notice of appeal so that the

service of the notice within time is not a condition precedent to the valid institution of an appeal (cf. Whitehouse Hotels Pty. Limited v. Lido Savoy Pty. Limited (1974) 131 C.L.R. 333; David Jones (Australia) Pty. Limited

v. Arauner (1981) 38 A.L.R. 657; Bishop v. R. (1982) 40 A.L.R. 40).

In Bishop, supra, Deane, Jd. (Bowen, C.J. concurring) left open (at p.41) the question whether the powers of the Court to grant an extension of time for

present purposes are to be found in the general provisions of Order 3 r.3 or in the more specific provisions of Order 52 r.15(2). There is likewise no need to determine this question here since, whatever "the source of the power, similar considerations will govern the manner of exercise of

In: the absence' of any evidence of prejudice to the ~ respondent if the extension of 'time were granted,. I am of the view that the discretion should be exercised in favour. of the appellant. 'This is not a case where the respondent has been taken by surprise by the late service of the notice of appeal, having organised its affairs in ignorance of the appeal: the respondent, through its solicitors, received a copy of the notice of appeal on 5 December 1984. Further, no application has been made or foreshadowed on behalf of the appellant to stay proceedings under the sequestration order. No prejudice to the general body of creditors, which would otherwise be a material factor to be taken into

It is true that in Bishop, supra, Deane, J. (Bowen, C.J. concurring) was much influenced in refusing the application for an extension of time by the circumstance that the Crown could advance no reason why the notice of appeal was not served within time (see per Deane, J. at p.43). But the case did present the special feature of the Crown exercising its right of appeal against sentence, thus Placing the prisoner in double jeopardy (see per Deane, J. at p.42; per Davies, J. at p.44).

I propose to order an extension of time until next Tuesday, 19 February 1985. "In "the circumstances, it is 'appropriate that the appellant pay the respondent's costs of | the appellant' s application. I propose to make no order for

I make the following orders:

1. I dismiss the application made by the respondent's notice of motion filed 30 January 1985. I make no order for

appeal be extended up to and including 19 February 1985.

costs of the application made by the appellant's notice of

I-certify that this and the S preceding pages are a true copy of the reasons for

judgment herein of The Honourable Mr Justice Beaumont.