The Applicant appeals to the Full Court of this Honourable Court against the dismissal of the First Appeal ('the Second Appeal').

Respondent's Bill of Costs with respect to the First Appeal is taxed and allowed at $7013.50.

The solicitors for the Applicant request, pursuant to s.65(1) of the Legal Practitioners Act, service of Phillips Fox's bill of costs relating to the Inquiry costs which the Applicant was ordered by the Respondent to pay on 14 October 1994.

The solicitors for the Respondent advise the solicitors for the Applicant that Phillips Fox was not required to serve a bill of costs.

The Second Appeal is heard by the Full Court of this Honourable Court.

The Full Court of this Honourable Court delivers judgment on and dismisses the Second Appeal.

A letter of demand for payment of the fine and costs is sent by solicitors for the Respondent to solicitors for the Applicant.

A further letter of demand from solicitors for the Respondent to solicitors for the Applicant.

The Respondent's Bill of Costs with respect to the Second Appeal is taxed and allowed at $5692.12.

The Respondent commences action in the District Court to recover from the Applicant the fine and costs.

The Applicant seeks an itemisation or taxation of the costs of the Inquiry pursuant to the Legal Practitioners Act.

The Applicant applies for an extension of time within which to tax the costs and disbursements incurred by the Respondent in the Inquiry and which the Applicant was ordered by the Respondent to pay on 14 October 1994 ('the extension of time application').

The Applicant's extension of time application is dismissed by Registrar Dixon.

The Respondent obtains summary judgment against the Applicant in the District Court proceedings.

The Applicant serves on the Respondent an appeal from the order dismissing the extension of time application ('the costs appeal').

The Applicant files an appeal against the summary judgment in the District Court ('the District Court appeal').

The Applicant's 'Chamber Summons for Review of Taxation', in the costs appeal is heard adjourned to 14 July. The Respondent is served with this chamber summons later in the day.

The Applicant files and serves an 'Affidavit in Support of Review of Taxation'.

The Applicant's 'Chamber Summons for Review of Taxation' is heard and directions are made for the filing of affidavits, with an adjournment to 28 July 1998.

Further directions are made for the filing of submissions in the Applicant's 'Chamber Summons for Review of Taxation'

The Applicant files an application for leave to appeal the issue of Penalties and Costs. This is listed to be heard on 25 August 1998. The hearing date of 25 August 1998 is vacated and no steps are taken by the Applicant to relist the application.

The Respondent files submissions in the Applicant's 'Chamber Summons for Review of Taxation'.

The Applicant seeks the Respondent's consent to file and serve a further affidavit by 28 August 1998 and her Outline of Submissions and List of Authorities by 5 September 1998 in relation to her 'Chamber Summons for Review of Taxation'. The Respondent consents to the extensions of time sought.

A review of the taxation of the costs of the First Appeal requested by the Applicant takes place. The Registrar allows the bill in its entirety.

The Applicant seeks the Respondent's consent to extend the time for the filing of affidavits to 16 October 1998 and the time for filing an Outline of Submissions and List of Authorities in her 'Chamber Summons for Review of Taxation' to 23 October 1998. The Respondent does not agree to the extensions sought.

The Applicant applies for special leave to appeal to the High Court from the decision of the Full Court of this Honourable Court delivered on 23 October 1997 in the Second Appeal ('the application for special leave'). That special leave application was more than 590 days out of time.

The application for special leave is heard and dismissed with costs by the Honourable Justices McHugh and Hayne of the High Court.

The Applicant files an 'Amendment to Application for Leave to Appeal the Penalty' in these proceedings.

The Honourable Justice Miller makes, inter alia, the following orders with respect to the Applicant's application for leave to appeal penalty:

1. The Applicant file an application for an extension of time within which to appeal, supported by:

(b) an affidavit explaining the reasons for delay, such documents to be filed and served by 15 June 2001.

2. The Respondent be at liberty to file an affidavit in answer to the Applicant's affidavit by 30 June 2001.

The Applicant files two affidavits, one entitled 'Explaining reasons for Extension of Time' and the other entitled 'Grounds of Appeal' ('the Applicant's affidavits')

The Applicant files a further Application for Leave to Appeal with Extension of Time ('the application for an extension of time within which to appeal').

Directions are made on the application for an extension of time within which to appeal, including the filing of affidavits and the application to be otherwise adjourned to a special appointment on a date to be fixed by the Listing Coordinator.

Affidavit of Trevor Graeme Hoddy is filed on behalf of Respondent in response to the application for an extension of time within which to appeal.

The Respondent brings an application to strike out portions of the Applicant's affidavits.

The Respondent's application to strike out portions of the Applicant's affidavits is heard and adjourned to a special appointment.

The special appointment hearing of the Respondent's application to strike out portions of the Applicant's affidavits takes place and orders are made by the Honourable Justice Hasluck striking out the Applicant's affidavits as asked in the Respondent's application.

The Applicant brings an application for leave to appeal from the decision of the Honourable Justice Hasluck striking out the Applicant's affidavits made on 7 September 2000.

The Applicant's application for leave to appeal the decision of the Honourable Justice Hasluck striking out the Applicant's affidavits is heard, and dismissed.

The Applicant brings a 'Chamber Summons to Set Aside Proceedings' in respect of the decision of the Honourable Justice Hasluck made 19 December 2000 is adjourned sine die with costs reserved.

The Applicant brings a 'Chamber Summons for An Application to Set Aside the Proceedings in Chambers on 19 December 2000' (separate to the Chamber Summons of 30 January 2001).

The Applicant's 'Chamber Summons to Set Aside Proceedings' dated 30 January 2001 and 'Chamber Summons for An Application to Set Aside the Proceedings in Chambers on 19 December 2000' are heard and dismissed.

The Applicant brings a further application for leave to appeal the decision of the proceedings on 23 April 2001.

The Applicant's further application for leave to appeal the decision of the proceedings on 23 April 2001.

The Applicant's further application for leave to appeal the decision of 23 April 2001 is not granted but adjourned for directions to be made on 31 May 2001 in relation to the application for an extension of time within which to appeal, with an order that the Applicant file and serve proposed grounds of appeal against penalty by 28 May 2001.

Directions are made for the hearing of the application for an extension of time within which to appeal. The matter is adjourned to set a day for a Judge to determine the following questions:

4. if competent, whether there is power to extend time;

5. if there is power, whether there should be an order extending time?

3 The matter comes before me for the determination of the three preliminary questions set out in the final paragraph of the above Chronology, as directed by Pidgeon AuJ.

The first preliminary question: Whether the proposed appeal against sentence is competent?

"44. (1) A person aggrieved by an order of the Board, or by the refusal of an application to the Board for registration or restoration to the Register, or as to any limitation, restriction or condition imposed, may within three months after the date of the decision by the Board make application in writing to the Board in the prescribed manner for a statement by the Board in writing of its reasons for the decision, and the Board shall, as soon as reasonably may be after receipt of the application, furnish the applicant with such a statement.

(2) Within one month after receipt of the statement of the Board furnished under subsection (1) of this section the person aggrieved by the decision of the Board may appeal from that decision to the Supreme Court."

5 The applicant is a person aggrieved by the Board's order imposing the penalties upon her following the Board's finding that her conduct constituted improper conduct.

6 The order imposing the penalties in question was clearly one which could in a proper case give rise to a right of appeal to the Supreme Court by a person aggrieved by such order, pursuant to the subsections I have quoted, I do not understand that proposition to be disputed by the respondent.

7 However, the provision in s 44(2) that "Within one month after receipt of the statement of the Board ... the person aggrieved ... may appeal from that decision to the Supreme Court", imposes a time limit upon the right of appeal. I shall advert to this issue hereunder.

8 If the proposed appeal had been instituted within the period of one month as prescribed by s 44(2) of the Act, that appeal would have been competent. No doubt, an application to join such an appeal to the appeal against the Board's findings would have had good prospects of success.

9 The applicant could therefore have combined an appeal against the penalties with the appeal against the findings, had she so wished. No good reason has been advanced for the failure to do so. On the principle expressed in Henderson v Henderson (1843) 3 Hare 115 (67 ER 319) the applicant is not now entitled to agitate an appeal when it is so closely connected with the subject of the appeal against the Board's findings (see Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 at 598 and the authorities there cited.

10 For the reasons which appear in relation to the second preliminary question, I am of the opinion that, after the expiration of the period of one month referred to in s 44(2), no right of appeal existed.

11 Accordingly, I would answer the first preliminary question in the negative.

The second preliminary question: If competent, whether there is power to extend time?

12 In view of my answer to the first preliminary question, this second question does not, strictly, arise. However, in case I am wrong in the views expressed above, I shall proceed to deal with the second question as though it does arise.

13 An appeal pursuant to s 44(2) of the Act is to be brought and the proceedings are to be had in such manner as is prescribed by the Rules of the Supreme Court. The relevant rules are contained in O 65. That Order applies to appeals to the Court "(d) where under the provisions of any Act, an appeal lies to the Court from a decision of any tribunal, and the procedure to be followed in the conduct of the appeal is not otherwise prescribed".

14 The term "tribunal" in that context includes, inter alia, a board (O 65 r 1).

15 Rule 2(2) provides: "This Order is subject to the provisions of the particular Act under which the right of appeal is conferred".

"Every appeal to which this Order applies shall be instituted by filing, within 21 days from the date of the decision against which the appeal is made ... a notice of motion ...".

17 Section 44(2) of the Act provides for any appeal to be instituted within one month after receipt of the relevant statement of the Board.

18 Under O 65, there is a wide discretion in the Court to extend the time for an appeal or for compliance with other time limits. However, when the particular statute which creates the right of appeal requires the filing of a notice of appeal within a stated time, there is no power under the Rules to extend that time.

19 In Patterson v Public Service Board of NSW [1984] 1 NSWLR 237 at 239 CA, Moffitt P, with whom Glass and Priestley JJA agreed, was concerned with the provisions of s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW), which provided:

"An appeal under section 54 shall be made within 21 days of the Tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the rules of the Supreme Court".

20 In that case, the claimants brought an appeal to the Court of Appeal from the Government and Related Employees Appeal Tribunal on a question of law, later than twenty-one days after the Tribunal's decision. They lodged a motion for an extension of time in which to bring their appeal. Counsel for the respondent raised a preliminary objection that the court had no jurisdiction to extend time and that the purported appeal was incompetent. Reliance was placed on Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 211; affirmed (1978) 52 ALJR 589; 20 ALR 314.

21 Counsel for the claimants sought to rely upon the well-known principle that when the legislature without more confers jurisdiction on a court to hear and determine a matter it imports the ordinary incidents and procedures of the court including its relevant rules: Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1954) 94 CLR 554 at 559; Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 96.

22 Moffitt P pointed out that the principle relied on is no more that a rule of construction and only applies in the "absence of express words to the contrary or of reasonably plain intendment" (otherwise): Electric Light and Power Supply Corporation Ltd (supra) at 560. His Honour went on to say:

"For example a contrary intention would be shown by providing a condition precedent to the exercise of the jurisdiction conferred or to the right to invoke it, such as a condition which makes the mandatory provision that some step shall be taken by a party (eg filing an initiating process within a fixed time.) Section 55(1) imposes a condition of this character".

23 The Court of Appeal held that the provision in the Government and Related Employees Appeal Tribunal Act, s 55 that an appeal on a question of law from the tribunal to the Court of Appeal shall be made within 21 days after the tribunal's decision is mandatory and that no jurisdiction exists to extend the time to bring such an appeal.

24 Patterson v Public Service Board of NSW was referred to, apparently with approval, by Kirby J in Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148 at 1153.

25 In Woods v Bate [1987] 7 NSWLR 560 at 569, McHugh JA (with whose reasons Hope JA agreed) said:

"Now it may be accepted that the lodging of an appeal within twenty-one days is mandatory: cf Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237".

26 In Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718 it was held that the requirement in s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) as to the making of an appeal under s 54 is mandatory and that time cannot be extended under the Supreme Court Rules. It was, however, further held by Priestley and Powell JJA (Kirby P contra) that, where s 55(1) has been complied with and an appeal is on foot, the court has power under the Supreme Court Rules to grant an extension of time in which to comply with the time for service of the notice of appeal stipulated in s 55(2).

27 Kirby P referred to the decision in Patterson as an "uncongenial precedent" but felt obliged to apply it in Matkevich.

28 The applicant submits that there is nothing in the Act which precludes an extension of time to appeal if it is consistent with the Supreme Court Rules. The decision in Patterson is to the contrary effect.

29 In my opinion, the principle enunciated in Patterson is to be applied in the present case.

30 Accordingly, I would answer the second preliminary question by holding that this Court has no jurisdiction to extend the time prescribed by the Act within which the applicant could file an appeal against the penalties imposed upon her.

The third preliminary question: If there is power, whether there should be an order extending time?

31 The answers I have given to the first and second preliminary questions have the effect that the third preliminary question falls away.

32 However, in case I am wrong in those answers, I propose to deal with the third question in its hypothetical form, namely, if there were power to extend time_,_ should there be an order extending time?

33 In my opinion, there are several matters which would militate against the grant of an order extending time (were there power to make such an order.) These may be summarised as follows:

1. The proposed appeal relates to an order by the Board dating back to 14 October 1994. Accordingly, the applicant is out of time by more than six years and the explanations offered by her for the delay are, in my opinion, inadequate to afford any reasonable excuse for the failure to pursue the proposed appeal in time. The delay, in itself, is reason enough, in my opinion, to require a refusal of the application to extend the time: cf Gallo v Dawson [1990] HCA 30; 93 ALR 479; Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported, SCt of WA; Library No 7196; 18 July 1988; Girando v Girando (1997) 18 WAR 450, per Malcolm CJ at 455; Boomalli v Hake [1985] WAR 7 at 9.

2. Following legal advice, the applicant decided not to appeal against the penalties imposed and contented herself with an appeal as to the Board's findings. As I understand her, the applicant decided not to appeal against the penalties as she considered that, if the appeal against the findings was successful, the question of penalties would fall away. A deliberate decision at the time, pursuant to legal advice, not to appeal against the penalties is, in my view, a cogent reason to disallow any belated attempt to institute such an appeal now.

3. The applicant argued that the respondent must always have been aware of her intention to challenge (as she put it) the penalties imposed. She pointed to the fact that the respondent had not opposed an application for a stay of the penalties pending the determination of the applicant's appeals against the Board's findings, suggesting that this in itself confirmed knowledge on the part of the respondent of her desire to challenge the penalties imposed. However, that proposition is illogical. There might be every reason to seek a stay of the penalties pending the outcome of an appeal against the findings, without any implication of a desire to appeal against (or otherwise challenge) the penalties imposed, on the basis that a successful appeal against the findings would have the effect of setting aside the penalties consequent upon the findings, whether or not those penalties were in themselves objectionable.

"There was at all times an assumption that the 'stay of penalty' would apply until the appeal process was complete. The respondent did not at any time challenge that assumption. The appeal against the penalty began at the first opportunity after the conclusion of the second appeal and resumed as soon as practicable after the High Court appeal".

35 While the assumption referred to may have been made by the applicant herself, there is nothing before me to indicate that the respondent ever made such an assumption and it certainly does not arise by necessary implication, as I have suggested above.

36 In my opinion, if the proposed appeal were competent and if there were power in the Court to extend the time for an appeal (contrary to the views expressed above) it would, for the reasons I have expressed, be inappropriate to exercise such power in the present case.

37 It follows that I would answer the third preliminary question in the negative.