NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD [1994] NSWCA 238

NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA

21 March 1994, 21 March 1994

MOTION — EXTENSION OF TIME TO APPEAL — CHANCE OF SUCCESS OF FRESH EVIDENCE.

Clarke JA This is a notice of motion in which the claimant seeks an extension of time to appeal from a decision of Wood J given on 19 March 1991 and in which the claimant seeks leave in the event that an extension of time is granted to adduce fresh evidence of matters which have occurred since the trial.

The matter has come before me on one earlier occasion and at that time I expressed the view that the question whether leave to adduce fresh evidence should be granted must be reserved to the appeal court if the claimant was successful in his other application. Whether fresh evidence should be admitted and if so the evaluation of that evidence are matters which should in my opinion be considered together and appropriately only by the court deciding an appeal. Accordingly, I do not propose to rule on the second application. However, some evaluation of the chance of success of the claimant in adducing the fresh evidence is necessary in determining whether to extend the time for allowing an appeal to be brought.

As it seems to me in the particular circumstances of this case that application requires consideration of two separate but not entirely unconnected elements. The first is whether there has been a satisfactory explanation for the failure to file an appeal within time. In this case that is not unimportant for there has been a very lengthy delay of in excess of two years. The second is whether the claimant has any real prospect of securing the leave necessary to adduce further evidence. If, for instance, I concluded that the application to adduce fresh evidence was hopeless then in the particular circumstances of this case I would undoubtedly refuse to extend the time.