Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Limited v Sydney Metro

10Under s 67(2) any appeal to the Court must be within 90 days. The Applicants' claims for compensation following withdrawal of the PAN were refused on 31 August 2010. The appeal period expired on 28 November 2010. The Class 3 applications were lodged on 16 December 2010.

Applicants' submissions 11The Applicants could seek compensation under s 71 of the JT Act and/or the external review process established by the NSW government. The latter had no statutory basis. On 29 September 2010 the Applicants through their solicitors first contacted the Respondent in relation to the rejection of their claims and a meeting was held on 11 October 2010. The Respondent agreed to extend the time for filing of the application for external review on 11 November 2010, 26 November 2010 and again on 6 December 2010 until 7 December 2010. Despite agreeing to extend its own time frame for the external review by 116 days and an extension of 10 days after the 90 day limit under s 67(2), the Respondent is opposing an extension of time of 18 days for the Class 3 applications. 12The Respondent should not oppose an application for extension of time of 18 days when it has been so generous in extending the time for the non-statutory scheme. The reason why the application was not filed in time is identified in the affidavit of the Applicants' solicitor Ms Kim. The oversight was hers. The reason for the delay was said by the Applicants' solicitor in correspondence to be due to difficulties in obtaining instructions, providing legal advice and in the Applicants understanding their legal rights and current position. The solicitor was diverted by obtaining instructions and giving legal advice in relation to the external review process, confusion by the solicitor in relation to extensions of time, and the solicitor failing to notice that the time to lodge an application in the Court expired on 29 November 2010. 13The principles to apply in the exercise of the Court's discretion to extend time for compliance with procedural time limits will ordinarily justify an extension in the interests of justice being served per Cohen v McWilliam (1995) 38 NSWLR 476 at 480 - 481. The approach in Da Rous v Burwood Council [1995] NSWLEC 152 which considered similar wording in s 66(3) of the JT Act should be applied. Delay caused by a legal representative rather than the client personally affords a sound basis to extend time, per Sophron v Nominal Defendant (1957) 96 CLR 469 at 474. That the client may have a potential claim against his or her legal representative should be accorded little weight per Tobias JA (Mason P and Basten JA concurring) in Groth v Audet [2006] NSWCA 48; (2006) 65 NSWLR 388 at [27] - [28]. 14The delay of 18 days is insignificant as the Respondent has been aware of the Applicants' claims since 9 June 2010. There is no prejudice to the Respondent if the proceedings are maintained. 15Section 69(3) provides a period of three years from the time the PAN is withdrawn to lodge a claim for compensation. The 90 day period for appeals is markedly shorter than the three year period allowed in s 69. 16There will be substantial prejudice to the Applicants if their claims are not pursued. They are pursuing important statutory rights to compensation available to them under the JT Act and this is analogous to the importance of private property rights recognised by French CJ in R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603 at [43]. Any prejudice to the Respondent was not occasioned by misconduct of the Applicants. Section 67(4) refers to the failure of an applicant. There is no evidence of any failure of the Applicants, rather there is evidence that the failure was that of the Applicants' solicitor.

Respondent's submissions 17The only issue to consider is whether the Applicants have satisfied the Court that there was good cause for the failure to file the Class 3 applications in time given the clear wording in s 67(4). The approach taken to extensions of time in cases such as Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 where the length of the delay, the reason for the delay, whether the case is arguable and whether there is prejudice to a party if time to file is extended, do not apply. 18Da Rous is distinguishable on its facts and does not take the correct approach to the construction of s 66(3). It incorrectly considers the question as if it were a general application for an extension of time. Error by the Applicants' solicitor is not sufficient to discharge the onus on a party of demonstrating good cause. The approach in Charles v Charles (NSW Supreme Court, Young J, 25 March 1998, unreported) to whether there were special reasons to grant an extension of time to file an appeal under the Family Provisions Act 1982 (the FP Act) (since repealed) is pertinent. The decision of Kiefel J in Perry v Comcare [2006] FCA 481 is also relevant. 19The external review process advised to the Applicants, care of their solicitors, in the determinations of their claims dated 31 August 2010 suggests this was clearly explained and was straightforward. It was activated by completing a simple one page application. No additional information was to be supplied as part of the review process. There was no cause for any confusion on the part of the Applicants or the Applicants' solicitor. 20The solicitor's inadvertence cannot be good cause for the Applicants as found in Charles and Comcare . The reasons given in the Respondent's solicitor's letter dated 8 December 2010, annexed to Ms Ong's affidavit, of why good cause has not been demonstrated apply. After the determinations, the Applicants did not contact the Respondent until 29 September 2010. At a meeting between the Applicants and the Respondent on 11 October 2010, the Respondent explained the reasons for its determinations and the Applicants agreed to provide clarification of the amounts claimed. As no clarification was provided, the Respondent advised that unless the Applicants sent a response within 14 days, the Respondent would close its file. On 25 November 2010, the Applicants requested a three week extension of time to lodge applications for external review. The Respondent granted an extension until 3 December 2010. 21The Applicants were aware of these criticisms before the preparation of Ms Kim's affidavit, but have chosen not to respond to them with evidence from the Applicants themselves. A party can be reasonably expected to call a person as a witness who is likely to be able to speak on some relevant fact or issue. Failure to do so suggests that an adverse inference may be drawn by that failure per Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 - 312, Brandi v Mingot (1976) 12 ALR 551 at 559 - 560. In this case there is an inference open from facts set out in the correspondence annexed to Ms Ong's affidavit that there is no good cause. Accordingly the Court can draw the adverse inference that a failure to call any director or other person associated with either Applicant, allows for the Jones v Dunkel inference to be drawn. The Applicants have not discharged the onus they bear of demonstrating good cause on their part for the failure to file the applications in this matter in time.

Meaning of good cause 22The meaning of good cause must be considered in its statutory context. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. No definition is found in the JT Act. The Court must be satisfied in the circumstances that good cause is demonstrated by an applicant, meaning a legally sufficient reason: Black's Law Dictionary , 9th ed (2009) Westlaw International (electronic resource), accessed on 15 February 2011. Whether that exists must be determined in the circumstances of each case. 23As the parties' submissions identified, no case has considered the meaning of good cause in relation to s 67(4). The submissions identified cases which have considered s 95A of the Environmental Planning and Assessment Act 1979 (the EPA Act) which provides that a consent authority may grant the extension of time within which development must be commenced if satisfied that good cause has been shown. For example in Derodo Pty Ltd (in liq) v Ku-ring-gai Municipal Council (1992) 77 LGRA 1 Bignold J stated at [6] - [7] that he did not consider he should attempt to define the familiar statutory term as it must be considered in its statutory context. Unlike s 95A which provides a discretionary power to a council, s 67(4) is in mandatory terms whereby the Court must be satisfied that good cause exists. 24Section 33 of the Interpretation Act 1987 states that a statutory construction which promotes the purpose or object underlying the Act is to be preferred to a construction that would not. In Wilson v State Rail Authority of New South Wales (2010) NSWCA 198 Allsop P at [12] stated that in construing an act the legal and historical context must be considered at the outset. At [13], he also emphasised principles from Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] - [71] including that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (at [69]). 25The objects of the JT Act include in s 3(1) to ensure compensation on just terms for the owners of land acquired by an authority of the State. In this case the Applicants have a potential claim for compensation because of the withdrawal of a PAN. It is relevant to consider that if the Applicants' application for extension of time is refused by a State government agency exercising powers of compulsory acquisition, and then not proceeding with the acquisition they will be deprived of an opportunity to have their claim for compensation for the withdrawal of the PAN determined by the Court. That is important to the statutory context in which s 67(4) is viewed. Depriving a property owner of access to the courts to determine fair compensation was considered relevant by Bannon J when considering s 66(3) of the JT Act in Da Rous at 8. Loss of an important statutory right is also relevant to consider in relation to s 67(4) and has some bearing on my finding below in relation to the relevant considerations which can be considered.

Whether good cause shown by the Applicants 26The issue arises of whether the explanation for the failure to file in time proffered by the Applicants' solicitor, without evidence from the Applicants, is sufficient explanation for the Court to be satisfied of good cause in relation to the Applicants. Both counsel emphasised that s 67(4) refers to the person claiming compensation under s 67(1). Here the failure relied on is that of the Applicants' solicitor who gives evidence that the error resulting in delay was hers. That is submitted by the Applicants' counsel to be sufficient to satisfy the Court that there was no failure on the Applicants' part so that the Court can be satisfied that good cause is demonstrated by the Applicants. 27The Respondent's counsel submits that reliance on their solicitor's error is not sufficient for the Applicants, which bear the onus of establishing that there was good cause on their part for the failure. The Applicants' solicitor cannot stand in the shoes of the Applicants for the purposes of s 67(4) given that the section refers to the person whose claim for compensation is rejected under s 67(1). The Respondent submitted that the inference arises from the Applicants' solicitor's correspondence that the Applicants were informed of the issues in the rejection of their respective claims for compensation including the relevant time frames as these were explicitly set out in the determination of claims of 31 August 2010 and had an active role in providing instructions to their solicitor. In the absence of evidence from them on this important matter an inference should arise under Jones v Dunkel that any evidence they would have given would not have assisted them. 28Two questions arise for consideration. Firstly, whether a solicitor's error in not filing an appeal within a statutory time frame can provide a sufficient basis for an extension of time. Secondly, is the evidence of the solicitor sufficient to establish good cause or must the applicant also give evidence? Considering the first question, in Comcare Kiefel J distinguished between the applicant and his/her solicitor in holding that the failure of the solicitor could not discharge the onus on the applicant of demonstrating that special reasons to extend time existed to justify leave to appeal out of time under O 52 r 15(2) of the Federal Court Rules (Cth) which required "special reasons" to do so. Her Honour considered this required a ground which justifies a departure from the general rule and would be a case out of the ordinary. At [8] she stated that a solicitor's lack of awareness of a time limit or a solicitor's oversight in ensuring that it is observed did not amount to a special reason. Her Honour considered that the rule looks to something connected with the applicant which might provide an excuse. 29Charles , referred to in more detail below, also considered whether an error of a solicitor was sufficient reason to extend time and Young J expressed doubt that it could. Decisions of single judges of other superior courts are not binding on me, while of course worthy of consideration given that experienced judges have considered a matter relevant to the issue before me. 30There are, I surmise, numerous decisions of single judges in all superior courts on applications for extension of time where the failure to file a document in time is a result of a solicitor's error. Further research by the Court has found numerous examples of such cases where a solicitor's error has been accepted as sufficient justification for an extension of time to be granted in light of other relevant factors. In Re Clubb; ex parte Clubb v Westpac Banking Corporation (1990) 93 ALR 123 Burchett J in bankruptcy proceedings had to consider if discretion to extend time ought be granted where the failure resulted from the solicitor's error. He referred to the Full Federal Court decision of Jess v Scott (1986) 12 FCR 187 at 190 that "[t]he modern view is that 'a failure by a solicitor to take the proper steps could itself be regarded as establishing sufficient cause for an extension of time'", quoting in turn Martin v Nominal Defendant (1954) 74 WN (NSW) 121 at 125 per Walsh J. Burchett J took into account the shortness of time involved and the absence of prejudice inter alia in granting an extension of time. In Simms v Western Sydney Area Health Service [2003] NSWSC 445 Burchett AJ had to consider an appeal from a master's decision refusing leave to file out of time. The relevant rule stated that the court could extend time if just and reasonable to do so. His Honour considered that when a client puts a case in the hands of a solicitor reasonable reliance may be placed on that solicitor, referring to Martin v Nominal Defendant. The client gave evidence in that case. 31Further cases are referred to at [1.12.35] in Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date (loose-leaf at Service 52, January 2011), "Uniform Civil Procedure Rules", in some of which the solicitor's error was considered a sound basis for an extension of time and some where it was not. The different decisions made by various judges in different statutory contexts do not provide conclusive authority on the correct approach in this case. A relevant decision of the High Court in Sophron is considered later in this judgment. 32Resolving this issue also caused me to consider more generally the nature of the solicitor/client relationship. Although not addressed in argument the nature and extent of a solicitor's usual retainer is relevant when assessing whether it is reasonable for the Applicants to rely on their solicitor's actions taken on their behalf. G E Dal Pont, Law of Agency , 2nd ed (2008) Butterworths at [1.39] states: Within the confines of the retainer, the agency relationship between solicitor and client carries with it the authority to all such things incidental to the object of the representation. (Footnote - Polkinghorne v Holland (1934) 51 CLR 143 at 156 per Rich, Dixon, Evatt and McTiernan JJ; Ex parte Maxwell (1955) 72 WN (NSW) 333 at 336 per Roper CJ in Eq; Carrell v Carrell [1975] 2 NZLR 41 at 444-5 per Cooke J ; Forestview Nominees Pty Ltd v Perron Investments Pty Ltd (1999) 162 ALR 482 at 503 per R D Nicholson J; Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 at [172] per McLure J). As stated by an English judge in the nineteenth century: 'The attorney is the general agent of the client in all matters which may reasonably be expected to arise for decision in this cause.' (Footnote - Prestwich v Poley (1865) 18 CBNS 805 at 816; 144 ER 662 at 666 per Montague Smith J). For instance, therefore, a solicitor retained to conduct litigation has authority to do all things necessary and proper for the conduct of the litigation and need not refer questions arising in interlocutory matters to the client for specific instructions. (Footnote - Ex parte Maxwell (1955) 72 WN 333 at 336 per Roper CJ in Eq). 33Ms Kim's affidavit attests to her retainer by the Applicants to seek compensation under s 69 of the JT Act and instructions to commence proceedings under s 71(6) of the JT Act. Given her evidence that the scope of her retainer includes the conduct of litigation, the retainer would include authority to do all things necessary for the conduct of litigation. It is a reasonable approach that where a solicitor on the record in court proceedings is prepared to accept that the error or oversight resulting in the failure to file in time is his or hers, the explanation proffered through the evidence of the solicitor at fault can establish there is good cause. 34Whether an applicant must give evidence separately from his or her solicitor in this circumstance remains as the second question to consider. None of the cases referred to explicitly considered whether an applicant must give evidence separately from his or her legal representative in order to discharge the onus of establishing a special reason to extend time. In several of the cases reviewed the client as well as his or her solicitor gave evidence. Abundant caution suggests that the Applicants should give evidence given the express reference in s 67(4) to the person who has not lodged the appeal. Having said that, based on Ms Kim's evidence that she was retained to undertake this litigation and that she overlooked the relevant statutory limitation period in s 67(2), I consider that is sufficient on this occasion for the Applicants to discharge the onus upon them by relying on Ms Kim's evidence. I will not require on this occasion the Applicants to file evidence saying they rely on their solicitor's advice in the proceedings in order to discharge the onus they have of satisfying the Court of good cause. No Jones v Dunkel inference arises from the fact that the Applicants have not provided any evidence. 35For completeness I refer to Groth . In Groth the Court of Appeal was considering the impact of the failure to correctly comply with pleading requirements under the Legal Profession Act 1987 (since repealed). Tobias JA at [28] considered that little weight should be given to the fact that the plaintiffs may have other remedies against their solicitor. His Honour referred at [27] to Morrison v Judd [1995] NSWCA 300 which was an application for extension of time where the failure was that of a solicitor so that a client had a remedy in negligence. Kirby P (Meagher and Powell JJA agreeing) considered that circumstance should not carry much weight. Similar observations were made in Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 by Gibb J at [97] where a client had no notice from his solicitor of an order which he was seeking to set aside. Consistently with these authorities I have not attributed much (if any) weight to whether any other action would lie against the Applicants' solicitor if leave to extend time was not granted.

Additional relevant considerations 36A further matter raised in argument concerned other relevant considerations, if any, when considering s 67(4) of the JT Act. The Applicants' counsel argues a number of matters are relevant. The Respondent's counsel submits to the contrary that there is only one matter to consider under that section, whether good cause is demonstrated. The parties have relied on different cases which consider different statutory terms and contexts for the granting of extensions of time. I have held that the Applicants have demonstrated that good cause exists and that is clearly a central consideration for the Court under s 67(4) given the only matter required by the section is the Court's satisfaction that good cause by an applicant has been demonstrated. On the Respondent's argument there is no need to consider any further matters as this issue was resolved in favour of the Applicants. 37There is a paucity of authority on s 67(4). One case in this Court has considered a similar provision in s 66(3) of the JT Act. Da Rous is relied on by the Applicants' counsel as applying the correct approach. Bannon J considered that s 66(3) should be interpreted liberally as it is a serious step to deprive a property owner of access to the courts to determine fair compensation. He considered the circumstances surrounding the late application, including that the respondent council was apprised of the applicants' intention to commence court proceedings, that the solicitors appeared to have procrastinated without explanation, a letter from the council appeared to be an invitation to bring the matter before the court despite the 90 day appeal period having elapsed. Hunter Valley Developments Pty Ltd v The Minister for Home Affairs and Environment (1984) 3 FCR 344 was referred to as containing relevant principles to be applied. Bannon J notes that different legislation uses different terminology in dealing with extensions of time. He noted that authorities considered the length of delay and the risk of prejudice as relevant matters to be taken into account, referring to Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 95 ALR 138 at 149. His Honour did not appear to address himself specifically to whether good cause had been demonstrated. 38Hunter considered the Administrative Decisions (Judicial Review) Act 1977 (Cth) which did not identify any criteria by which to assess an application for extension of time to file an appeal. Matters considered by Wilcox J were whether there was an acceptable explanation of delay and whether it was fair to extend time, whether prejudice to the respondent may result, whether the decision-maker continued to be aware of the intention to appeal, and the merits of the substantive application. 39The Respondent sought to distinguish Da Rous on the basis of differing circumstances and also submitted the approach was wrong in considering a wider range of factors than is warranted by the terms of s 66(3) and therefore s 67(4). The Respondent also submitted the usual approach to cases concerning extension of time (for example Hunter ) was not relevant given the specific terms of s 67(4). As will be clear from the discussion which follows, I do not agree with these submissions. The approach in Da Rous remains relevant to the scope of the exercise of the Court's discretion. 40The Respondent relied on Charles and Comcare . In Charles Young J (as his Honour then was) had to consider if an extension of time to lodge an application under the FP Act ought be granted. That Act requires an applicant to show sufficient cause to justify the court extending time for filing. His Honour stated that sufficient cause was not demonstrated by a solicitor having an application before the expiry of the limitation period but failing to lodge on time. Something more than mere incompetence or inattention by a solicitor must be demonstrated before time can be extended under the Act. He went on to consider that there was a firm indication that a claim would be made, there was no prejudice to the beneficiaries as a result of the late application, and he took into account that an inexperienced solicitor caused the late lodgement. He exercised his discretion (just) to extend the time for filing under s 16(3) of the FP Act. While the Respondent relied on that judgment, Young J's overall approach favours the Applicants' argument in that his Honour did consider whether prejudice was occasioned to the respondent and that the intention to file an application had been communicated in advance, matters going beyond whether "sufficient cause" had been shown. In Comcare , Kiefel J (as her Honour then was) also referred to the applicant's prospects of success as a relevant consideration. 41In Sophron the High Court (Dixon CJ, McTiernan, Fullagher and Taylor JJ) was considering whether sufficient cause was shown in an application for extension of time to file a claim under motor vehicle accident legislation. That the failure to lodge resulted from a solicitor's error was not held to be conclusive of whether there was sufficient cause demonstrated, additional matters such as whether prejudice was caused to the respondent as a result of the delay also had to be considered. The judges stated at 475 that "[t]here must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice." There is substantial similarity in the meaning of sufficient cause and good cause, in my view, suggesting this approach of the High Court is applicable here. 42The general duty of the Court to do justice between the parties referred to in Cohen v Williams , relied on by the Applicants, must be considered in the context of particular statutory provisions, here s 67(4). Section 67(4) must be considered in the context of the JT Act. The Court has a discretion in considering s 67(4) as to whether good cause has been shown and that discretion should be exercised appropriately to ensure that justice between the parties is achieved. As identified already, there are many decisions where single judges in various superior courts, and the High Court in Sophron, have considered a number of factors in relation to extension of time applications. All the cases referred to which have considered applications for extension of time, regardless of whether or not there are criteria for doing so specified in the relevant statute, have considered to varying degrees matters such as the length of delay, the reasons for delay, whether there is an arguable case or whether prejudice to a respondent is likely to arise. The Respondent's submission that s 67(4) requires the Court to consider only whether there is good cause for the person's failure to lodge the appeal in time is at odds with the approach in the cases referred to. The Court must consider matters relevant to its wide discretion. Whether the Applicants have demonstrated that good cause exists for the failure to file in time is a central element in the Court's consideration but need not be the sole consideration. That broader considerations ought be considered if the judicial officer considers these to be relevant is supported by the significance of the statutory rights conferred on persons under the JT Act. 43The period of delay of 18 days is minimal in the circumstances. There is no prejudice to the Respondent if leave to file out of time is given. I am not able on the evidence available so far to assess the strength of the Applicants' case. 44I would note that the fact that the Respondent granted extensions of time on numerous occasions in correspondence in relation to the non-statutory external review process is irrelevant. The numerous extensions of time granted by the Respondent were for the benefit of the Applicants. The two processes available to the Applicants at the time their compensation claims were refused are unrelated legally. The only relevance the parties' solicitors' correspondence might have is to explain the confusion of the Applicants' solicitor concerning the non-statutory external review process and the time limit in s 67(4) of the JT Act. Whether or not the solicitor's conduct appears excusable is not to the point in view of my conclusion earlier that the Applicants can rely on the their solicitor's evidence of error to establish good cause.

Conclusion 45For the reasons given above, the Applicants have satisfied me that there is good cause for their failure to lodge their respective appeals within the 90 day period specified in s 67(2). Additional matters that the Court is entitled to take into account suggest that leave to file outside the 90 day period specified in s 67(2) should be granted. I will therefore make the order set out in the Notice of Motion in prayer 1.

Order 46The Court orders that time to lodge an application under s 71(6) of the Land Acquisition (Just Terms Compensation) Act 1991 be extended to the date being 16 December 2010 endorsed on the cover of the applications in proceedings no 31018 of 2010 and 31019 of 2010.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2012