MOUNT v WILLIAMS [1988] NSWCA 97

MOUNT v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 27 June 1988, 27 June 1988 [1988] NSWCA 97

PRACTICE & PROCEDURE — appeal seven weeks out of time — sufficiency of explanation of delay — illness of solicitor — absence from office — instructions to appeal overlooked — acknowledged "inexperience" results in mistakes causing refusal by Registry to accept motion for extension — held: sufficient explanation given — extension granted to appeal — observations by Kirby P about proper approach to allow determination on the merits if adequate explanation for delay given. Supreme Court Act 1970. ORDERS 1. The claimant has until 4:00 p.m. on Tuesday 29 June 1988 to file a notice of appeal in the terms of the draft notice of appeal which has been placed on the file. 2. The claimant must pay the opponent's costs of and incidental to the motion. 3. The stay previously granted by his Honour Judge Moore is continued in its terms by me until the hearing of the appeal or earlier order of the Court.

Kirby P On 18 March 1988 his Honour Judge Moore entered judgment in favour of the opponent in the sum of $15,000 in a personal injury case.

The claimant wishes to appeal from his Honour's judgment. However, the claimant became out of time for the filing of the notice of appeal. A notice of motion is before the Court for the purpose of seeking an extension of time within which to appeal. I am dealing with this matter pursuant to s46 of the Supreme Court Act 1970.

The claimant moved on an affidavit of Mr Geoffrey Meadows. He is a solicitor, in the employ of the Government Insurance Office. Mr Meadows works in Hurstville. Two explanations were offered for the delay in the filing of the appeal within time.

The first, set out in the affidavit of 18 May 1988, was the absence of Mr Meadows from work (through illness) from 14 March 1988 to 11 April 1988. According to Mr Meadows, in his absence another solicitor, a Mr Ray, attended to the hearings of the matter. Subsequently he made a recommendation that an appeal be brought from the decision of Judge Moore.