Shields, Isaac John Mackay & Anor v Australia & New Zealand Banking Group [1995] FCA 931

CATCHWORDS PRACTICE - Federal Court Rules - refusal of application seeking extension of time for filing notice of appeal to Full Court - no error of legal principle - whether any reason shown as to why time for appeal should be extended. Thomas Borthwick & Sons (Pacific Holdings) Limited v. T.P.C. (1988) 18 F.C.R. 424 Gallow v. Dawson (1990) 64 A.L.J.R. 458 Jess v. Scott (1986) 12 F.C.R. 187 Lovell v. Lovell (1950) 81 C.L.R. 513 Reid v. Nairn (1985) 60 A.L.R. 419 Federal Court of Australia Act 1976, subsec. 25(2) Federal Court Rules, Order 52, Rule 15 ISAAC JOHN MACKAY SHIELDS AND JENNIFER MARGARET SHIELDS V. AUSTRALIA AND NEW ZEALAND BANKING GROUP NG97 OF 1995 SHEPPARD, LEE, SACKVILLE JJ. SYDNEY 27 OCTOBER 1995

IN THE FEDERAL COURT) OF AUSTRALIA ) NEW SOUTH WALES ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. NG97 OF 1995 APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: ISAAC JOHN MACKAY SHIELDS and JENNIFER MARGARET SHIELDS Applicants and AUSTRALIA AND NEW ZEALAND BANKING GROUP Respondent MINUTE OF ORDER THE COURT: SHEPPARD, LEE, SACKVILLE JJ. DATE OF ORDER: 27 OCTOBER 1995 WHERE MADE: SYDNEY THE COURT ORDERS THAT:

1. The application filed as a notice of appeal on 20 February 1995 be dismissed. 2. The applicants pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT) OF AUSTRALIA ) NEW SOUTH WALES ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. NG97 OF 1995 APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: ISAAC JOHN MACKAY SHIELDS and JENNIFER MARGARET SHIELDS Applicants and AUSTRALIA AND NEW ZEALAND BANKING GROUP Respondent THE COURT: SHEPPARD, LEE, SACKVILLE JJ. DATE : 27 OCTOBER 1995 PLACE: : SYDNEY REASONS FOR JUDGMENT THE COURT: This matter was commenced as an appeal from an order of a Judge of this Court (Whitlam J.) which dismissed the applicants' application, made under O.52 sub-r.15(2) of the Federal Court Rules, for leave to appeal from the judgment of another Judge of this Court (Einfeld J.) which ordered that the appellants' application to set aside a Bankruptcy Notice served upon them be dismissed. There is a question whether the order made by Whitlam J. was an interlocutory or a final order. Whether the order be final or interlocutory, it would appear that neither an appeal as of right nor by leave is available to the applicants; see subsec. 25(2) of the Federal Court of Australia Act 1976; Order 52 rule 15(2) of the Federal Court Rules; Reid v. Nairn (1985) 60 A.L.R. 419; and Thomas Borthwick & Sons (Pacific Holdings) Limited v. Trade Practices Commission (1988) 18 F.C.R. 424. Counsel for the respondent ("the Bank") did not raise the argument that the appeal was incompetent and proposed that the matter be argued as if leave to appeal had been granted. Mr Shields appeared in person on behalf of both applicants. We make the following comments without determining the competence of the application which is before us. The Bankruptcy Notice referred to was in respect of an unsatisfied judgment of a Judge of this Court (Morling J.) made on 8 February 1993 which, inter alia, ordered that the applicants pay to the Bank a sum of $139,829.37. On 22 December 1992 Morling J. had given leave to the Bank to enter judgment against the applicants on a cross-claim brought by the Bank in a proceeding commenced against the Bank and others by the applicants. On 8 February 1993 Morling J. made orders by consent in the terms of a minute signed by counsel for the parties. Pursuant to those orders the applicants' application was dismissed and judgment was entered against them on the cross-claim in the sum set out above. On 4 June 1993 the applicants then and thereafter representing themselves, filed a motion seeking to set aside the judgment entered on 8 February 1993 on the ground that they had not consented to judgment being entered in those terms. The applicants' argument appeared to be that they did not fully understand their position at the time they instructed counsel who had signed the minute on their behalf. The motion was heard by Wilcox J. on 20 July 1993. The applicants gave oral evidence. The motion was dismissed on the day of hearing. On 3 August 1993 the applicants instituted an appeal from that judgment. On 20 August 1993 the Bankruptcy Notice was issued and some time later it was served on each of the applicants. On 16 February 1994 the applicants applied to set aside the Bankruptcy Notice. Pending disposal of the appeal from the judgment of Wilcox J. the time allowed for compliance with the Bankruptcy Notice was extended by orders of the Court. On 3 March 1994 a Full Court of this Court (Neaves, Burchett and Hill JJ.) dismissed the appeal from the judgment of Wilcox J. An application to the High Court for special leave to appeal from the judgment of the Full Court was refused on 15 February 1995. The application to set aside the Bankruptcy Notice came on for hearing before Einfeld J. on 12 May 1994 and 14 July 1994. Written submissions were filed on 4 August 1994. On 11 November 1994 Einfeld J. dismissed the application. By letter dated 7 December 1994 the applicants advised the Bank that they intended to appeal from that decision. The time allowed by the Rules for the filing of an appeal had expired on 2 December 1994. On 31 January 1995 the applicants applied for leave to appeal out of time. The application came on for hearing before Whitlam J. on 17 February 1995 and was dismissed on that day. On 20 February 1995 the applicants purported to appeal against his Honour's order dismissing their application. By O.52 sub-r.15(2) an application for leave to appeal out of time may be granted by the Court, or a Judge, for special reasons. The application must be supported by an affidavit which shows: a) the nature of the case; b) the questions involved; and c) the reason why leave should be given (O.52 sub-r.15(6)). In the reasons delivered by his Honour well-known authorities on the point were referred to and considered. His Honour concluded that the requirement of sub-r.15(2) that special reasons be shown, obliged the applicants to show, in effect, that it was necessary that leave to appeal be granted in order that justice may be done between the parties. (See: Jess v. Scott (1986) 12 F.C.R. 187; Gallow v. Dawson (1990) 64 A.L.J.R. 458 at 459.) His Honour noted that the affidavit filed by the applicants did not comply with sub-r.15(1) in that it did not show the nature of the case to be considered on the appeal. Furthermore, the delay in making application for leave to appeal out of time was explained only in part by a period of illness suffered by the male applicant, Mr Shields. The absence of adequate explanation for the period of delay, however, was not the reason his Honour refused to exercise a discretion to grant leave to appeal. After hearing the appellants' submissions as to the case to be presented upon the proposed appeal his Honour was not persuaded that such an appeal had any prospect of success. In short, the appellants had shown no reason why the time to appeal should be extended and certainly no special reasons as required by the Rules. In his submissions to this Court Mr Shields did not attempt to show that his Honour erred in applying legal principles in making his decision. In the absence of such an error a discretionary judgment of this nature should stand. (See: Lovell v. Lovell (1950) 81 C.L.R. 513 per Kitto J. at 532-534.) Mr Shields directed his submissions to the issues that were considered by the primary Judge, Einfeld J. No doubt the demonstration of the strength of a proposed appeal may provide a ground for a court to enquire whether the refusal to grant leave to make that appeal out of time involved a miscarriage of the exercise of a judicial discretion, but that is not this case. The appellants were unable to show that the reasons expressed by Einfeld J. demonstrated that his Honour misunderstood any part of the material put before him or entailed any error in legal reasoning. It follows that the proposed appeal would be without substance. For the foregoing reasons it is plain that the application for leave to appeal was properly dismissed. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of the Court. Associate: Date: