GRIFFITHS v McDONALD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SAMUELS JA 11 February 1990 [1990] NSWCA 80 Samuels JA. Bryson J made certain orders in an application for construction of a will and the final orders were made on 31 October 1990. Unfortunately there appears to have been some confusion in the mind of the solicitors acting for the party who wished to appeal, the present claimant, and two affidavits which are sworn and filed display a discrepancy, one asserting that the orders were made on 30 October and the other on 31 October. The claimant, rather late in the day but still within time, had drawn a notice of appeal which, unfortunately again, showed the date upon which the orders were made as 30 October. That being the case, the last day for filing a notice of appeal was, if my arithmetic is correct, 27 November. Had the date of final orders been 31 October, the last date for filing the notice of appeal would have been 28 October, which was the day on which the claimant's solicitor's city agents endeavoured tofile it. The clerk in the office, however, rejected it as being out of time, as indeed it was on the face of the document itself. There is now no dispute between the parties that the material date was 31 October so that in truth the attempt to file the notice of appeal on 28 November was within time. Strictly, therefore, this application which seeks an extension of time in which to file the notice of appeal is unnecessary. The matter came on in the last motion list when the application was opposed and it is opposed again today. The opponent is unable to suggest any prejudice if the appeal is now filed. Of course, as I have said, it seems to me that it was not out of time, a circumstance which I would have thought would have been apparent to the solicitors for the opponent. The application, however, is opposed on the basis that it was necessary on two grounds. The first is that the notice of appeal discloses no real prospects of success. I do not regard that as a sound proposition. The notice is certainly a little enigmatic but I do not think that any failures to comply with the stipulation of Pt 51 r 8(1)(d) are such that I should refuse on that ground to allow it to be filed. It would benefit from a little more specificity, perhaps, but the Court will generally refuse an application of this kind on the ground advanced only if the notice of appeal indicates on its face that it is hopeless or is so badly or incoherently drawn that it is not a document which the Court should receive upon its file. Neither of these criticisms applies here. Secondly, it is said that the claimant has refused to comply with certain ancillary orders of Bryson J. Certainly a letter was written, I think, on 3 November, followed by another on 6 November seeking compliance with certain orders which were mechanical matters following upon the orders which his Honour had made. I see no basis for refusing the relief sought upon that ground. It may be that at some stage an application for a stay might have to be made and, if the Court were to refuse it, then a question might well arise as to compliance with those orders. 2 UNREPORTED JUDGMENTS It is true in this case that the application is strictly unnecessary but I would think that some covering order ought to be made because of the events which have happened. The Registry was entitled to act on the face of the notice of appeal and the error which brought all this about was made by the solicitors for the claimant. On the other hand I can see no reasonable basis upon which the opponent should refuse to consent to the application. That is relevant upon the question of costs. I think, however, in the circumstances, and because it was an error on the face of the notice of appeal which brought all this about, that probably the fairest order is to make the costs of the motion costs in the appeal. Accordingly I extend time for filing this appeal to 4 pm today and I order that the costs of the motion shall be costs in the appeal. Orders accordingly.