Teese v Clinch Neville Long [2003] FCA 274

FEDERAL COURT OF AUSTRALIA

Teese v Clinch Neville Long [2003] FCA 274 PRACTICE AND PROCEDURE – application for extension of time for filing notice of appeal – application dismissed because appeal would be doomed to fail.

Federal Court Rules O 52 r 15 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission(1988) 18 FCR 424 cited Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 cited Jess v Scott (1986) 12 FCR 187 cited Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 67 FCR 416 cited Jackamarra v Krakouer (1998) 195 CLR 516 cited

ANN-CAROLYN TEESE v PETER ALLAN ROWLANDS CLINCH, ROSS STANLEY NEVILLE, CLAYTON ANDREW LONG trading as "CLINCH NEVILLE LONG LAWYERS"

N 1305 OF 2002 LINDGREN J 28 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1305 OF 2002

BETWEEN: ANN-CAROLYN TEESE

APPLICANT

AND: PETER ALLAN ROWLANDS CLINCH, ROSS STANLEY NEVILLE, CLAYTON ANDREW LONG trading as

"CLINCH NEVILLE LONG LAWYERS"

RESPONDENTS

JUDGE: LINDGREN J

DATE OF ORDER: 28 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an extension of time in which to file a notice of appeal be dismissed. 2. The applicant pay the respondents' 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 N 1305 OF 2002

BETWEEN: ANN-CAROLYN TEESE

APPLICANT

AND: PETER ALLAN ROWLANDS CLINCH, ROSS STANLEY NEVILLE, CLAYTON ANDREW LONG trading as

"CLINCH NEVILLE LONG LAWYERS"

RESPONDENTS

JUDGE: LINDGREN J

DATE: 28 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The applicant ("Ms Teese") applies for an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court ("FMC"). The judgment was pronounced on 20 August 2002, in exercise of the bankruptcy jurisdiction which is vested in the FMC and this Court concurrently by subs 27(1) of the Bankruptcy Act 1966 (Cth) ("the Act"). This Court is given the relevant appellate jurisdiction by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). 2 Subrule 15(1) of O 52 of the Federal Court Rules had the effect, relevantly, that the notice of appeal was required to be filed and served within twenty-one days after the date when the judgment appealed from was pronounced. That period expired on 10 September 2002, but subrule 15(2) empowers the Court or a Judge for "special reasons" at any time to give a person leave to file and serve a notice of appeal. 3 Subsection 25(2) of the FCA Act provides, relevantly, that applications for an extension of time within which to institute an appeal to the Court may be heard and determined by a single Judge or by a Full Court. Even where, as at present, the jurisdiction is being exercised by a single Judge, it is the Court's appellate jurisdiction which is being exercised: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543. 4 In order to establish "special reasons", Ms Teese must demonstrate circumstances which take the case out of the ordinary run of cases, since the latter are clearly intended to be governed by the general time limit of twenty-one days: Jess v Scott (1986) 12 FCR 187 at 195; Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 67 FCR 416 at 427-428; and see Jackamarra v Krakouer (1998) 195 CLR 516 at 539-543 per Kirby J.