KROEHNERT v BALL [1991] NSWCA 169

KROEHNERT v BALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 8 April 1991

[1991] NSWCA 169

Priestley JA This is an application for an extension of time to appeal from a judgment delivered in the District Court on 11 December last year. As regrettably seems to be a widespread practice a solicitor acting for the losing party took the view that he would not file a notice of appeal until he had a transcript of the Judge's reasons in writing. That transcript did not become available until after the time for appeal had expired and it was not until a fortnight after receipt of the transcript that this notice of motion was filed on 15 March 1991.

In the meantime, however, on 15 January 1991, which in view of the court vacation and the rules concerning that, was a date within the time in which the defeated party could have filed a notice of appeal, the solicitor for the defeated party had both contacted the Court Reporting Branch concerning the transcript for which he had first applied on 18 December 1990, and also spoken to the solicitor for the successful party informing him of having received instructions to appeal, and that he was waiting until the transcript of the reasons for judgment arrived before instituting the appeal.

Although not formally in evidence in the application this morning, counsel for the claimant seeking the extension of time made known to the court that when the trial judge gave his reasons for judgment on 11 December last, counsel then in attendance on behalf of his client had taken a detailed note of what was said by the Judge, that note being quite sufficient to have enabled the preparation of an appropriate notice of appeal for filing within time.

For the opponent today a quite strong argument was made urging the court not to exercise discretion to extend the time for filing notice of appeal. The circumstances concerning the availability of the detailed notes of the reasons for judgment were cited and the length of time between the expiry of the appropriate time for appeal and the date when notice of motion for extension was filed.