[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
MEAGHER JA: This motion was heard in the vacation period on 25 January 2024. At the conclusion of argument, I made the orders set out at [28] below and indicated that I would provide reasons for the making of those orders on or before 29 January 2024. Those reasons follow.
The applicants, Mr Owen Salmon and a company of which he is sole director, seek an order that the time for their filing a notice of appeal from orders made in proceedings in the Equity Division of the Supreme Court on 19 October 2023 be extended to 29 February 2024 (see Salmon v Albarran [2023] NSWSC 1238 (Nixon J)).
That application is made by Mr Salmon for himself as first plaintiff in the proceedings below and on behalf of TCBS Group Holdings Pty Ltd, the second plaintiff in those proceedings.
On 9 November 2023, the applicants filed a notice of intention to appeal from those orders. That notice was served on each of the eight respondents within 28 days of the material date (see Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.8). Such a notice may not be filed if a summons seeking leave to appeal or a notice of appeal has been filed (see r 51.7).
The order extending time is sought under r 51.9, which is as follows:
51.9 Effect of service of notice of intention to appeal
(1) An applicant who has filed and served a notice of intention to appeal must file and serve the relevant originating process on each necessary party -
(a) within 3 months after the material date, or
(b) within such other period as the Court may order.
(2) An application under subrule (1)(b) may be included in the originating process.
(3) The filing and service of a notice of intention to appeal does not operate to commence proceedings in the Court.
The applicants do not rely on the general provision in r 1.12 as an alternative source of the power to extend the time fixed by r 51.9. Nor do they rely on any residual inherent power of the Supreme Court which might be engaged in circumstances which are outside r 51.9 and exceptional.
For the purposes of r 51.9(1)(a), the "material date" is 19 October 2023, that being the day on which the orders sought to be appealed from were made (see r 51.2); and the "relevant originating process" is either a summons seeking leave to appeal or a notice of appeal (r 51.2).
Accordingly, the effect of the filing of the notice of intention to appeal was that the "relevant originating process" - here, a notice of appeal - was to be served within three months after 19 October 2023, namely on or before 18 January 2024, or "within such other period as the Court may order" (UCPR r 51.9(1)).
Significantly, r 51.9(3) makes clear that the filing and service of that notice of intention to appeal did not and could not operate to commence any proceedings in the Court of Appeal, appellate or otherwise. As to the commencement of proceedings by the filing and service of a notice of appeal, r 51.16 provides:
51.16 Time for filing and service of notice of appeal
(1) A notice of appeal must be filed and served on each necessary party -
(a) if the notice of appeal is filed pursuant to leave to appeal - within 7 days after leave is given or such other time as the Court may fix, or
(b) if a notice of intention to appeal has been filed and served under this Part and the notice of appeal is not filed pursuant to leave - as allowed under rule 51.9, or
(c) if a notice of intention to appeal has not been filed and served under this Part and the notice of appeal is not filed pursuant to leave to appeal - within 28 days after the material date or such other time as the Court may fix.
(2) The Court may extend time under subrule (1)(a) or (c) at any time.
(3) A party applying for an extension under subrule (1)(a) or (c) may include the application in the notice of appeal.
Relevantly, r 51.16(3) proceeds on the premise that if a notice of intention to appeal has not been filed, any application for an extension of time to file a notice of appeal must be brought by a "party", namely, a person who has filed a notice of appeal (see r 51.2).
As Leeming JA observed in Olsen v Mentink [2019] NSWCA 279 at [38]-[40]:
The premise of all these provisions is that until an originating process has been filed, there is no proceeding in the Court of Appeal, as an incident of which an application varying the time specified by the rules might be made.
The ordinary and natural reading of r 51.9 is that it identifies the time within which an appellant may commence an appeal. It does not mention the party who will become the respondent to the appeal when and if a notice is filed. It speaks of an earlier period of time, when there is no appeal and thus no respondent to an appeal…
In particular, the "Court" in r 51.9 is defined to mean the Court of Appeal: see r 51.2. It is the Court of Appeal which may make an order for "such other period" for the filing and service of a notice of appeal. It is easy to see how that makes sense when an appellant has commenced proceedings in the Court of Appeal. But in those circumstances, r 51.9 can only operate by way of extension - ex hypothesi, when a notice of appeal has been filed. Only when a notice of appeal has been filed (albeit late) is there a proceeding in the Court of Appeal within which application may be made to make some other order for the period within which it is to be filed and served.
The applicants' original notice of motion was drawn as to be made in the Equity Division and sought an extension of time to 29 March 2024. As amended, it was filed in the Court of Appeal on 22 January 2024 and sought an extension of time to 29 February 2024. However, the filing and service of that notice of motion did not constitute the commencement of proceedings in the Court of Appeal. Rather, the applicants' motion is brought in circumstances where no notice of appeal has been filed, and there remains the possibility that no appeal proceeding will be commenced by the filing of a notice of appeal.
The applicants' motion was listed before Griffiths AJA on 17 January 2024. On that day, on the application of the respondents, the motion was stood over for hearing before me on 25 January 2024.
In adjourning the matter, Griffiths AJA made the following orders:
(1) Time for filing a notice of appeal be extended until 5pm on Thursday 25 January 2024 as an interim measure.
(2) The applicant's notice of motion dated 12 January 2024 is stood over to be heard by the Court of Appeal duty judge on 25 January 2024 at such time as the parties will be advised.
(3) No order as to costs.
His Honour also noted that "the interim extension [made by Order 1] is without prejudice to the respondents' position regarding the longer extension sought in the notice of motion".
That "longer extension" was to 29 February 2024, and the respondents' position was that the Court had no power under r 51.9 to extend that time in the absence of a notice of appeal having been filed. As to the adjournment of the application for that extension, the respondents' position, at least as contended by the first, second and fourth to eighth "prospective" respondents (see r 51.2), was that any potential prejudice to the applicants as a result of that adjournment could be avoided or cured by the respondents confirming that they would not object to a notice of appeal as out of time if it were filed and served before that application had been determined. In doing so, their intent was to put the applicants in a position equivalent to that in which they found themselves as at 17 January 2024. If the extension application had been heard and dismissed on that day, the applicants could still have filed a notice of appeal within the period required by r 51.9(1)(a) because that period expired on the following day.
In an email sent to Mr Salmon on 17 January 2024 at 10:57am, the solicitor for those respondents, Ms Curry, proposed that the hearing of the applicants' motion be stood over on the basis that the respondents, other than the third respondent, Mr Brown, for whom she did not act, did "not oppose the Plaintiff receiving an interim extension of time to file a Notice of Appeal which extends time to the proposed adjourned hearing of the Motion".
Order 1 made by Griffiths AJA and the note to that order indicate that his Honour accepted this proposal as a condition for the granting of the adjournment sought by Ms Curry's clients. In the absence of any transcript or reasons for the orders made, it is not possible to confirm that the third respondent expressly agreed in that condition.
Turning to the applicants' motion, which invokes the power of this Court under r 51.9(1)(b) and not otherwise, that motion must be dismissed because there is no proceeding in the Court of Appeal to which the applicants and respondents are party and in respect of which an order may be made under this provision.
The applicants contend that the language in r 51.9(1)(b) is capable of describing an order of the Court made before the relevant originating process has been filed. It is said that, whilst r 51.9(2) permits such an application to be included in the originating process, it does not foreclose the making of an application before that process is filed and proceedings commenced.
There are difficulties with this construction. As Leeming JA notes in Olsen v Mentink at [40], the "Court" in r 51.9 is the Court of Appeal. The subject matter of the exercise of the power is the time in which the "relevant originating process" is to be filed and served in that court (see r 51.9(1)).
In permitting such an application to be "included in the originating process", r 51.9(2) confirms that an order under r 51.9(2) may be made notwithstanding that the 3 months' period for the filing of a notice of appeal has expired. That is the only circumstance in which it would be necessary to make such an application if it was proposed to file a notice of appeal outside of that period. In that circumstance, the application, if not made in accordance with r 51.9(2), could be made by a notice of motion filed in the proceedings commenced by the late filing of the notice of appeal (see r 18.1 as made applicable to proceedings in the Court of Appeal by r 51.1(3), (4)). In this context, r 51.9(3) makes clear that whilst a person who files and serves a notice of intention to appeal is an "applicant" in relation to that notice, that person is not a party to proceedings in the Court of Appeal, either as an "appellant" or an "applicant" who has filed an "originating process" (see r 51.2).
In this respect, the position of an applicant under r 51.9(1)(b) is the same as that of a person under r 51.16(1)(c) who has not filed a notice of intention to appeal. If such a person has not filed a notice of appeal, that person is not a "party" to any proceeding and accordingly cannot apply under r 51.16(2) for any extension of time because of the language of r 51.16(3), which in terms is that such an application must be made by a "party".
It follows that the present notice of motion should be dismissed with costs, including the costs of the proceedings before Griffiths AJA.
It does not follow that the applicants cannot commence proceedings by filing a notice of appeal and also apply for an extension of time, either in the notice of appeal or in a motion filed with or subsequent to the filing of that notice of appeal.
Order 1 made by Griffiths AJA should also be set aside. That order was made as an "interim" measure only and "without prejudice to the respondents' position", which included that the Court lacked jurisdiction and power to order any extension of time. Whilst the making of Order 1 may have been accompanied by the consent of the parties, that consent was qualified and could not overcome the Court's absence of power under r 51.9.
In circumstances where I have upheld the respondents' argument, Order 1 must be set aside because the Court had no power to make such an order and because the order was made on an "interim" basis and without prejudice to the respondents' right to argue on the motion that there was no power to make that order.
For these reasons, at the conclusion of argument on 24 January 2024, I made the following orders:
1. Dismiss the applicants' notice of motion with costs, including the costs of the hearing before Griffiths AJA on 17 January 2024.
2. Set aside Order 1 made by Griffiths AJA on 17 January 2024.
Finally, it should be recorded that the circumstances in which the hearing of the motion was adjourned may become relevant in any further application for an extension of time. Those circumstances suggest that the respondents did not contend that they were or would be prejudiced by any delay in the filing of a notice of appeal after 18 January and before 25 January 2024.
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Amendments
30 January 2024 - Delete superfluous "any" in catchwords
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Decision last updated: 30 January 2024