GRIFFITHS v McDONALD [1991] NSWCA 130

GRIFFITHS v McDONALD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 February 1991

[1991] NSWCA 130

Mahoney JA This is an application for extension of time in which to file a notice of appeal. The notice of appeal as far as one can infer from the affidavit which has been filed appears to have been filed one day out of time. No explanation is given as to the reason why it was not filed in time. The only gesture towards an explanation is contained in par 4 of the affidavit in support of the application which says, inter alia, "I regret my oversight".

My Boyd has properly taken the point there is no sufficient explanation as to why the notice of appeal was not filed in time. He suggests that this may, I extrapolate on his submission, be part of a pattern indicating that there are no merits in the appeal and the application has been filed in substance in order to hold the position.

Mr Flaherty properly indicated there may well be a change of solicitors involved in the matter. I am not disposed to be satisfied at the moment as to why the notice of appeal was not filed in time. Normally this would weigh heavily against the grant of the application. However, it is undesirable that the matter be dismissed.

In the circumstances the notice of appeal has been filed, and the grounds raised by the notice of appeal are such that the argument should not take long.

I note the estate is a small estate. I do hope the costs of today do not significantly increase the burden upon the estate of this litigation. However, in all the circumstances, Mr Flaherty having asked for an adjournment, I think an adjournment should be granted to enable the matter to be put in proper order. I do not limit the matter to that. To enable the parties in default to give some adequate explanation as to why the notice of appeal was not filed in time, particularly having regard to the comments and submissions which have been made by Mr Boyd, I will stand the matter over for one week to enable an affidavit to be filed to deal with the matter. That affidavit should be filed and served by Thursday afternoon. I will not make a formal order to that effect but I indicate that should be so. Mr Boyd will then have the opportunity of dealing with it, if there is anything in the affidavit that is required to be dealt with.