a 455 CATCHWORDS Appeal - application for extension of time to file and serve notice of appeal after lapse of 21 days from order fcr leave to appeal from interlocutory orders of Supreme Court. Special Reasons - failure of appellants' solicitor to file and serve notice of appeal - application for extensicn of time refused. Federal Court Rules - consideration of Order 52 Ruie 15(7) and Order 3 Rule 3. Practice and Procedure - Appeal - Application for leave to file and serve notice of appeal out of time - special reasons. Federal Court of Australia - Rules of Court Order 52 Rute 15, Order 3 Rule 3. Cases referred to - Hoar v. R. 40 A.L.R. 189 Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1374) i31 C.L.R. 333 Bishop v. R. 40 A.L.R. 40 Ratnam v. Cumarasamy (1964) 3 All E.R. 935 Revici v. Prentice Hall Inc. & Ors. (1969) 1 All E.R. 77 Morres v. Papuan 6 Rubber Trading Co. Ltd. (1914) 14 §.2. NSW 241 Gassner v. Frost 1 «A.S.R. Baskervitie v. Martin 1967 S.A.S.R. 156 Ryan Vv. Baskerville 7 S.A.S.R. 32 Mickiem v. Lloyd 12 S.A.S-.R. 435 Re Robert Lee Wolcott & Carolee Corbett Wolcott and John Noel Davis & Colleen Lesley Davis No. NTG 31 of 1984 Muirhead J. THE FEDERAL COURT CF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. NTG 31 of 1984 ON APPEAL FROM THE SUPREME TERRITORY OF AUSTRALIA No. 306 of 1984 BETWEEN: ROBERT LEE WOLCOTT and CAROLEE CORBETT WOLCOTT Appellants AND: COHN NOEL DAVIS and COLLEEN SESUEY DAVIS Respondents ORDER Judge making order: Muirhead J. Date order made: 14 December 1984 Where made: Darwin. THE COURT ORDERS THAT: The application for extension of time is dismissec. THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. NTS 31 of 1984 ON APPEAL FROM TYE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRAL:A No. 306 of 1984 BETWEEN: ROBERT LEE WOLCOTT and CAROLEE CORBETT WOLCOTT Appellants AND: JOHN NOEL DAVIS and COLLEEN LESLEY DAVIS Respondents CORAM: Muirhead J. DATE: 14 December 1984 REASONS FOR JUDGMENT This is an application for an extension of time in which to file and serve Notice of Appeal from an inter- locutory order of Nader J., a Judge of the Supreme Court of the Northern Territory, which was made on 30 August 1984. By that order His Honour discharged an existing interim injunction, the broad effect of which had been to prohibit the respondents (the defendants to that Supreme Court action) from disposing of property or dealing with certain securities over land. Being an interlocutory order, special leave to appeal to this Court was necessary and by order dated 10 October 1984 Mr. Justice Forster, sitting as a Judge of the Federal Court of Australia, granted such leave. It thus became necessary for the plaintiffs to that action (the appellants) to file and serve the Notice of Appeal within 21 days after the date "when leave to adpeal was granted". (Order 52 Rule 15(1)(a)(ii)). The appellants' solicitor failed to take either of these steps and it is for this reason they seek an order that time be extended. Order 52 Rule 15(2) provides:- "Notwithstanding anything in the preceding sub-rule, the court or a judge for special reasons may at any time give leave to file and serve a notice of appeal". Qrder 3 Pule 3 empowers the court to extend or abridge any time fixed by the Rules "either before or after the time expires and whether or not an application for the extension is made before the time expires". In the present case the 21 cay pericd had expired before the application to extend time was brought. The appellants' solicitor filed an affidavit explaining his failure to file or serve the notice in the following terms - my, The reason why a Notice of Appeai was not filed and served in time, Dut 51x days late, was through ignorance on my part. Once leave to appeal was given, I believed that the only necessary document was an extraction of the Order of the Chief Justice giving leave to appeal, which was filed in Court and served on the Respondent. I only became aware that it might be necessary to draw up and file and serve a Notice oF Appeal after a telephone conversation with Counsel advising in this matter. As scon as Counsel mentioned that a Notice of Appeal might nave to be drawn up and served within 21 days, I drew up and filed and served the necessary Notice of Appeal." Counsel for the respondents appeared as a matter of courtesy but did not seek to be heard. Apparently tnose parties took the opportunity following the removal of the injunction to dispose of or deal in the property and interests in a manner which they consider makes the issue now academic. I consider the appellants' remedy, if any, nust be governed by the provision of Order 52 Rule 15 and in 'the present circumstances they cannot avail themselves of the wider powers of Order 3 Rule 3. In Hoar v. R. 40 A.U.R. 189 at 191 Toohey J. stated - "Order 3, r3(1) empowers the court or a judge to 'extend or abridge any time fixed py the rules or by any judgment or order'. The generality of this language must, I think, yield to the specific terms of 052, r15(2) where only 'the court' may at any time give leave to file and serve a notice of appeal and then only 'for special reasons'. It may be, as counsel for the Crown suggested, that 03, r3 permits the filing and service of a notice of appeal out of time by consent. I do not have to decide that. But whether 052 be regarded as a 'code' of procedures relating to appeals or rl5 seen as a provision to which, by reason of its specific terms, 03, r3(1) has no application, the result 1s the same. In my view 03 does not assist the applicant." Order 52, Rule 15(2) has since been amended +o enable a "judge", not only the "court", to extend time but I am in agreement with the general remarks of Toohey J. I consider the question relating to extension of time for appeals where the notice itself has not been filed within time must generally be governed by the specific provisicns of Order 52 Rule 15. Otherwise it seems to me that the "special reasons" provisions which were, no doubt, inserted un the Rules for good reason could generally be rendered nugatory, an appellant being content to rely on the nore general discretionary provisions of Order 3 Rule 3. The distinction between the filing of a Notice of Appeal and its service was considered by the High Court in Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1974) 131 C.L.R. 333 at 336. The court there commented - "It may be that the reason for the distinction drawn between the filing and the service of a notice of appeal is that it will normally always be possible to file a notice within time but not always possible to serve it. Whether or not this is so, the words of the rules in their present form indicate that it is the filing, and not the service, of the notice that commences an appeal." The High Court there held that the appeal was "instituted" by being filed within the period; the failure to serve showed lack of conformity with the rules but did not necessarily affect the competence of the appeal itself. This decision was adverted to by Deane J. in Bishop v. R. 40 A.L.R. 40 at 41. In that appeal his Honour commenting on the decision of the judge at first instance stated - "At first instance, Fox J. held that 03 r3 of the Federal Court Rules empowered him to extend that time for serving the notice of appeal. Order 3r3 confers, inter alia, a general power upon the court of a judge to extend any time fixed by the rules either before or after the time expires and whether or not an application for extension is made before the time expires. t is argued, on behalf of the appellant, that the powers vonferred by 03r3 were not available in the particular circumstances of the present matter because 052 r15(2) specifically dealt with the circumstances of the present matter and excluded the applicability of 93 ¥r3. As at present advised, I am inclined to agree with the view of Fox J. that 052 r15 should be seen as referring to the case where the relevant application is to extend the time both for instituting and serving the notice of appeal and should not be treated as excluding, from the general powers conferred by 03 r3, the power to extend the time for serving a notice of appeal which was duly filed within time (see, Whitehouse Hotels Pty Ltd v. Lido Savoy, supra). It 1s, however, unnecessary that I express any final view on that question since I have reached the conclusion that, in the circumstances of the present case, it 1s ultimately unimportant whether the appropriate provisions were those contained in 052 r15(2) or those contained in 03 r2." Davies J. was of the same view at page 44 - "However, I wish to make it clear that, in my view, there is no principle that an applicant must establish special circumstances when one is dealing with a mere irregularity, such as a failure to serve within time. <f there is a failure to file and serve a notice of appeal within time, then 052, sub-r 15(2) requires that there be special reasons for the grant of an extension of time. The terms of that sub- rule set out a principle which has long been established in the law. However, once an appeal has been commenced within time and what is sought is a mere extension of time for the serving of the notice of appeal, it seems to me that it is not necessary in every case that special reasons or special circumstances be shown." The question is therefore whether the failure of the appellants' solicitor to comply with the rules, of which he says he was ignorant, can be said to constitute "svecial reasons". There is substantial authority, for the sroeposition that dispensation from rules regulating appeal procedures is no mere matter of form - "The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in beach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation." Ratnam v. Cumarasamy (1964) 3 All E.R. at 935. (See also Revici v. Prentice Hall Incorporated & Others (1969) 1 All E.R. 772 per Lord Denning at 774.) In Morres v. Papuan & Rubber Trading Co. Ltd. (1914) 14 5.R. N.S.W. 141 the Court of Appeal dealt with an application for relief where a notice of motion for a new trial had been filed but not served due to the negligence o* the solicitor's clerk. The indulgence was refused but the Chief Justice Sir William Cullen, while emphasising the overall interests of justice, drew the distinction between a "mere matter of detail" and a "matter which definitely affects the right of the party". "And it is extremely desirable that the rules should not be allowed to stand in the way of serving the interests of justice. If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the Court should relax it. As was said by the Master of the Rolls in the case of Coles & Ravenshear ([1907] 1 K.3. 4), 'Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.' But when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwith- standing that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he ust satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules. If a rule is one nerely regarding a matter of detail in which the cther party can be placed in as good a position as 17 the rules had been complied with, then in regard to such matters of detail the Court ought not to be very strict, because, the main purpose to be served being the carrying out of the particular proceeding, the mere matter of detail ought not to stand in the way of that purpose being served. But where it is a matter which definitely affects the right of the >varty, then although the Court has full power to condone the breach of the rules, it would require to see that the object to be served is one that justice really requires under the particular circumstances." (At page 143) But in the present case the statute itself poses difficulties to the appellants. There is no ambiguity about the words "special reasons". For many years the provision of s.70(b) of the Road Traffic Act (S.A.) enabled the courts +o reduce the minimum period of disqualification following conviction for driving an uninsured vehicle, if the court was satisfied that there were "special reasons" for so doing. In Gassner v. Frost 1940 S.A.S.R. 295 at 298 Napier J. described such reasons as referring to "some facts, or circumstances which justify the court in treating the case as one which falls outside the ordinary purview of the section ... clearly distinguish- able from the general run of the cases that Parliament had in mind when it provided for the penalty of disqualification." That approach has been followed over the years in South Australia. In Baskerville v. Martin 1967 S.A.S.R. 156 at 160 Bray C.J. stated: "What then are special reasons? They cannot, in my view, be exhaustively enumerated. All that can be said at large is that special is the antithesis of general; Whittall v. Kirby [1947] K.B. 194, 200 per Lord Goddard C.Jd.3 and that Parliament was contrasting reasons which are special with reasons which are general. Lines v. Hersom [1951] 2 K.B. 682, 688. Nothing which is a common or usual factor in the ordinary typical case can constitute a special reason. There must be something extraordinary, unusual or atypical." (See also Ryan v. Baskerville 7 S.A.S.R. 31 and Micklem v. Lloyd 12 S.A.S.R. 435.) In urging an extension of time Mr. Ward based his submission on several grounds. He emphasised the avpeliants' solicitor had made an "honest mistake" misapprehending the rules. I cannot conceive the rules were misunderstood; TI doubt if they were considered. It is true, as he said, that the appellants themselves were not at fault and the error was entirely that of their legal representative. That is so, but it is the parties' solicitors who, on their behalf, conduct 10. litigation and who have the obligation of complying with statutory procedures. It could seldom be said that the failure of a solicitor to institute an appeal in time, caused by ignorance or negligence rather than by fortuitous circumstances, such as sickness or accident, constituted special reasons. Mr Ward also submitted that the appellants have a strong case, that the injunction was clearly erroneously discharged u>don an application in which the respondents did not seek such an order. That may be so; certain remarks of Forster J. when he granted special leave are to that effect, but they were passing comments rather than considered views. Counsel also emphasised that tne period of only six days had elapsed beyond the statutory period and that the respondents, having promptly utilised the opportunities the discharge of the injunction presented, now show no inclination to contest the application. These matters would certainly be relevant if I were exercising 4 general discretion, but the notice of appeal not having been filed I consider I am bound to determine the matter on the basis the Rules provide. I am concerned as to the past fortunes of the appellants in this litigation, but I cannot categorise the reasons for the failure to institute the appeal itseif by filing the notice in time as "special" within the meaning oF the Rules or of the authorities. 11. Accordingly the application must oe refused and the motion is dismissed. I make no order as to costs. I certify that this and the 1C preceding pages are a true copy of tne reasons for judgment herein of the Honourable Mr Justice Muirhead ot € ts GA - x" a Associate Dated A La Oe' tee nr oe .