FEDERAL COURT OF AUSTRALIA Denmeade v Stingray Boats [2004] FCA 1503 PRACTICE AND PROCEDURE –appeals – application for extension of time in which to file a notice of appeal – variation of original order – retrospective effect of slip rule – prospects of success on appeal. Federal Court Rules O 52 r 15(1), 15(2), O 35 r 7(3) Milson v Carter [1893] AC 638 applied Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 applied L. Shaddock & Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590 referred to Jess v Scott (1986) 12 FCR 187 referred to PHILIP DENMEADE v STINGRAY BOATS No QUD 211 of 2004 SPENDER J BRISBANE 18 NOVEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 211 OF 2004 BETWEEN: PHILIP DENMEADE APPLICANT AND: STINGRAY BOATS RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 18 NOVEMBER 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application filed 25 October 2004 for extension of time within which to appeal the judgment of Justice Spender of 15 September 2004 is refused. 2. The applicant pay to Stingray Boats costs fixed in the sum of $100, those costs to be payable forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 211 OF 2004 BETWEEN: PHILIP DENMEADE APPLICANT AND: STINGRAY BOATS RESPONDENT JUDGE: SPENDER J DATE: 18 NOVEMBER 2004 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a notice of appeal from the judgment which I gave on 15 September 2004 at Brisbane. The document headed "Application for a Extension of Time to File and Serve Notice of Appeal" in respect of the judgment so described was apparently faxed to the Registry at 14.37 on 15 October 2004. It bears a filing date 25 October 2004. 2 Order 52 rule 15(1) of the Federal Court Rules provides: 'The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.' 3 Subrule 15(2) provides: 'Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 4 The document faxed to the Registry on 15 October 2004 says, in the second paragraph: 'An extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52 rule 15.' 5 Mr Denmeade today says that the document was filed by facsimile on 15 October 2004. There is no material before the Court to suggest that the notice of appeal, in any event, was served within that time. Mr McCourt, for Stingray Boats, indicates that an unstamped document was delivered at his address, but that does not constitute proper service. Be that as it may, I intend to deal with the question of the extension of time point more fully later in these reasons. 6 The application for an extension of time arises as a consequence of orders that I made, first, on 15 September 2004, and then orders that I made on 24 September 2004. On 15 September 2004 I made the following orders: 1. The Federal Court Marshal be paid the sum of $643.64 for costs of the arrest and sale from the proceeds of sale of the vessel being 12 metre aluminium ship, identification number 2523Q. 2. Stingray Boats be paid the sum of $17,000 for costs of arrest and sale of the vessel from the proceeds of sale of the vessel being 12 metre aluminium ship, identification number 2523Q. 3. Esanda Finance Corporation Ltd be paid the balance remaining from the proceeds of sale of the vessel being 12 metre aluminium ship, identification number 2523Q. 4. There be no order as to costs. 7 Those orders were made after a hearing at which there was agreement between Stingray Boats and Esanda Finance as to the disposal of the balance of the proceeds of the sale of the vessel after the Marshal's costs had been paid. Esanda conceded that Stingray Boats were probably entitled to those costs before Esanda, in any event. At page 7 of the transcript, Mr Schmidt, on behalf of Esanda, said: '… my view on the priorities is as the same as the applicant's on what should happen, that they were probably entitled to those costs before us anyway. We reached that agreement, and on that basis, we might be getting less on one argument. They might get all of their 23,000 or whatever it is, and then we come after that which means we would be getting less than 96,000. … my understanding of the cases on priority which are referred to in my friend's submissions is that the costs of the arrest go first.' 8 The fact was that the orders that were made on 15 September 2004 were in the context of the positions adopted by Esanda and Stingray Boats. On 24 September 2004, I ordered that the order that I made on 15 September 2004 be amended in paragraph 1 with the addition of the following words: '... and Esanda Finance Corporation Ltd and Philip Denmeade each be paid out of the said proceeds $1,000 as reimbursement of their contribution to the Marshal's costs of the arrest and the sale of the ship.' 9 The effect of that amendment was to correct an omission which I had made in which I had omitted to make provision, as a first priority, for the contributions that had been paid by Esanda Finance Corporation Ltd and Mr Denmeade, each of $1000, towards the Marshal's costs of the arrest and the sale of the ship. Those contributions ought to rank as a first priority, and the orders that I made on 24 September 2004 had the effect of giving Esanda and Philip Denmeade $1000 each more than they would have pursuant to the orders which I had made on 15 September 2004. 10 The affidavit filed in support of the application for an extension of time to file and serve the notice of appeal includes the following: '1. The case involves the determination of priorities in the distribution of funds from the proceeds of sale of vessel, identification number 25230. Justice SPENDER determined that $17,000 be paid from the proceeds of sale to Stingray Boats. This includes monies paid to the Marshall, being $10,000 and legal costs of $7,000. Costs claimed were not restricted to costs of arrest and sale. 2. The respondent contested that their claim for costs of $17,328.19 should be paid in priority to other claimants. 3. The appellant [Mr Denmeade] argued the mortgagee costs ranked higher in priority to those of the respondent [Stingray Boats]. 4. Justice SPENDER ruled that the applicants claim in respect of legal costs ranked higher in priority than the claim in respect of costs of the mortgagee. (The costs were not divided between arrest/sale and general.) 5. The question of law is whether the arrest and sale costs of a single statutory maritime claimant rank in priority to the costs of a proprietary maritime claimant. The proprietary claimant, the mortgagee required no assistance to protect their claim, received no benefit from the act of arrest/sale actually incurring detriment. …' 11 The factual material contained in that affidavit is a mis-statement of the position. The $17,000 includes moneys paid to the Marshal, as well as costs associated with the arrest and sale of the vessel. There was not a contest, as between Esanda and Stingray Boats, as to priorities. There was, as I have indicated in the passage cited from the transcript of 15 September 2004, a concession by Esanda as to the ranking of the $17,000 of Stingray Boats ahead of its claim as mortgagee. 12 It is also not true to say that the mortgagee received no assistance or benefit from the arrest and sale of the vessel. The fact is that the mortgagee has received a substantial part of the mortgaged sums advanced, which has occurred as a consequence of the arrest and sale of the vessel. More importantly, as was conceded by Mr Denmeade before me today, the point of his appeal is simply to give to Esanda $7,000 more than it would otherwise receive and deprive Stingray Boats of $7,000 which it would otherwise receive in the absence of a successful appeal against my orders. 13 That is to say, there is no advantage or benefit accruing to Mr Denmeade in the event that his proposed appeal were to be successful. He is officiously acting in what he says, and in what he perceives to be, the best interests of Esanda, where Esanda itself chooses not to be involved, and where Esanda has agreed with Stingray Boats as to the proper disposition, as between them, of the net proceeds of the sale of the vessel. 14 The officious nature of Mr Denmeade's application is an important matter in assessing whether to grant any extension of time within which to appeal, bearing as it does on the prospects of a successful appeal. A successful appeal would not benefit Mr Denmeade in the slightest, and would simply frustrate the agreement inter se between Esanda and Stingray Boats. For that reason alone, the prospect of success is not very high. 15 The question then becomes whether an extension of time is required. Pursuant to O 52 r 15(1)(a)(i) of the Federal Court Rules, a notice of appeal must be filed within twenty-one days after the date when the judgment appealed from was pronounced. Mr Denmeade's affidavit, filed on 25 October, states that: '7. Extension of time should be given, as notice of appeal could not be prepared whilst final orders were pending. …' 16 This is a reference to the fact that the parties were advised that a slip or omission had occurred in the making of the orders of 15 September 2004, and that the Court proposed to hear the parties in relation to the making of an amendment to those orders pursuant to the Slip Rule. Even if one assumes that the application for an extension of time was filed when it was forwarded by facsimile to the Registry, the application for an extension of time was filed within twenty-one days of 24 September 2004, but not within twenty-one days of 15 September 2004. 17 The Court has power under O 35 r 7(3) of the Federal Court Rules to correct an error arising in a judgment or order from an accident or omission. This power is known as the "Slip Rule". The Rules reflect the inherent jurisdiction of a superior court of record: '… at any time to correct an error in a decree or order arising from a slip or accidental omission.': Milson v Carter [1893] AC 638 at 640. 18 The Rule applies where the variation is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy. The Rule, in my opinion, was properly applied in the current case. To the words of the first order, that 'The Federal Court Marshal be paid the sum of $643.64 for costs of the arrest and sale from the proceeds of sale of the vessel being 12 metre aluminium ship, identification number 2523Q' were added the words: '... and Esanda Finance Corporation Ltd and Philip Denmeade each be paid out of the said proceeds $1,000 as reimbursement of their contribution to the Marshal's costs of the arrest and sale of the ship.' 19 Each party, including Mr Denmeade, said that they had no objection to the amendment pursuant to the Slip Rule. The addition of those words was not contentious. 20 Reference may be made to the transcript of proceedings on 24 September 2004. At page 2 of that transcript, after hearing appearances on behalf of Stingray Boats, Esanda Finance and from Mr Denmeade, I said: '… it came to my attention that there is a slip in the orders that I made in relation to the payment out of funds in Court.' Later: 'The reason for my listing this today is this –' and I then set out the orders that I made on 15 September 2004. I continued: 'Those orders failed to recognise that, in addition to the $10,000 which is part of the $17,000 that Stingray Boats had paid to the Marshal, Esanda Finance Corporation Limited and Philip Denmeade has each paid to the Marshal, as contributions towards his costs, the sum of $1000. Now, that is correct, isn't it?' And Mr Denmeade said: 'Yes, your Honour.' I said: 'Mr Denmeade had paid $1000 of the Marshal's costs, and Esanda had paid $1000 for the Marshal's costs. That's correct, your Honour.' said Mr Denmeade. 21 I noted then that the first order that I had made failed to recognise those facts, and I expressed the amendment to be made in the terms that I have earlier set out. I then said: 'What that means, in a practical sense, is that Mr Denmeade will receive $1000 that he would not otherwise receive out of the proceeds, and Esanda Finance Corporation, at the end of the day, will receive $1000 less. Now, is there anything that anyone wants to say in relation to that proposed correction of the slip that I had made on 15 September?' Mr Linaker, on behalf of Esanda, said: 'Esanda doesn't oppose the amendments to the order that you have just outlined.' Mr Chappell said on behalf of Stingray Boats: 'There's no opposition from Stingray Boats to those proposed orders.' I said: 'Thank you. Mr Denmeade?' And Mr Denmeade said: 'No, your Honour.' Later I said: 'I am sorry that I had to make that correction, but it's better that it is fixed up rather than left uncorrected.' I then terminated the hearing on 24 September 2004. 22 In respect of the operation of the amendments that I made to the orders that I had made on 15 September 2004, in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, Lockhart J said at 211: '... the later order corrects the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected.' 23 In L. Shaddock and Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590, the High Court was concerned with whether an amendment to allow an amount for interest from the date of judgment at the trial, to the date on which judgment upon a successful appeal took effect, should be added by way of correction to the Orders of the High Court. That case is also authority for the proposition that the correction speaks from the date of the original judgment or order. 24 Thus, the twenty-one days for the filing of the notice of appeal began to run from 15 September 2004, notwithstanding that amendments were made to the first of those orders on 24 September. The making of the amending order has no effect on the time for filing the notice of appeal. The fact that amendment has occurred may be a relevant consideration on whether to grant an extension of time within which to appeal, but it does not affect the time within which a notice of appeal should be filed and served. It therefore follows that, in my opinion, an extension of time within which to file a notice of appeal is required in this case. 25 The power to grant leave for an extension of time within which to file a notice of appeal is a discretionary power. In Jess v Scott (1986) 12 FCR 187 the Full Court discussed the nature of the discretion. Their Honours said at 195: 'It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.' 26 As I have earlier indicated, in my judgment there is no basis in the material in the affidavit of Mr Denmeade which provides a proper basis or the special reasons for departing from the ordinary rule. If an extension of time were to be granted, the prospects of a successful appeal, which has no possible benefit to the proposed appellant, in my opinion, are nil. The amending order had the effect of refunding to him $1000 which he had contributed to the Marshal's fees and for which the earlier orders did not make provision. That he should officiously seek to act for the benefit of Esanda in circumstances where it chooses not to seek to be involved underlines the lack of prospects of success on his proposed appeal. 27 In the circumstances, and for the reasons which I have given, the necessary application for the extension of time within which to appeal is refused. 28 The order of the Court in respect of costs is that the applicant for an extension of time, Mr Denmeade, pay to Stingray Boats, costs which I fix in the sum of $100. I direct that those costs are payable forthwith. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 26 November 2004 The applicant appeared on his own behalf The respondent, a firm, appeared by one of its partners, Mr T. McCourt Date of Hearing: 18 November 2004 Date of Judgment: 18 November 2004