TRAU v UNIVERSITY OF SYDNEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER JJA and COLE J 28 November 1994 [1994] NSWCA 316 Mahoney JA (SUMMONS) The applications before the Court are two, an application for extension of time to lodge an application for leave to appeal and a consequent application for leave to appeal. The application for extension of time arises from circumstances which have (been discussed in argument and I shall not canvass them in detail. They arise from the fact that on 17 March 1994, Smart J refused the plaintiff (as I shall call him) Dr Trau, leave to file an eighth amended statement of claim. There were, it is said from the Bar table without dissent, two or three versions of that amended statement of claim which had been proffered before his Honour. His Honour, having considered the amended statement of claim, refused leave to file it. He did this for at least two reasons. First, because he did not accept that it was arguable that any of the relevant terms pleaded in paral0 of the statement of claim could be inferred from the circumstances of the matter and, secondly, that there was no arguable case, that is one that could succeed, because the limitation period for the bringing of the proceedings had expired before the cause of action had been pleaded. No application for leave to appeal was brought against that interlocutory order, but subsequently on 24 March 1994 Smart J made orders which effectively, as has been suggested from the Bar table, put an end to the proceeding. This was done on a summary judgment application. On 21 April 1994 a notice of appeal against the order made on 24 March 1994 was in fact lodged. That notice of appeal was defective in that the order that had been made on 24 March 1994 was an order which required leave to appeal before the appeal could be lodged. That subsequently was held by this Court on 22 August 1994. Between 21 April 1994 and the ruling of this Court on 22 August 1994 there appears to have been significant delay. If the facts referred to from the Bar table and contended in the chronology, which has been used in argument, be accepted as substantially correct, nothing much appears to have been done towards the bringing forward of an appeal. It is suggested that on 2 May 1994 the Registrar advised the parties, or at least Dr Trau, that leave to appeal was necessary, but I shall, for present purposes, put that aside. Following the order of this Court on 22 August 1994 there was filed on 29 August 1994 a motion seeking extension of time for the filing of an application for leave to appeal against a decision given by Smart J and subsequently a form of summons for leave to appeal was filed. Both of those documents are before this Court. 2 UNREPORTED JUDGMENTS On one view the default which has occurred and which gives rise to the present applications arises because when the notice of appeal was originally filed on 21 April 1994, it was overlooked that leave to appeal was necessary. Ordinarily the Court would look favourably upon an application for extension of time if the only reason for the failure to seek it had been a mistake of this kind. However, that is not the only matter to which regard may be had. In the present case it is appropriate to consider whether, if leave to appeal was granted, the appeal would have any real and substantial prospect of success and whether, given all the circumstances of this case, leave to appeal should be granted. The grant of leave is essentially a discretionary matter and the Court will take into account all of the factors relevant in this litigation. I am not satisfied by any means that the judgment of Smart J, on which leave to appeal is sought, was wrong. If that judgment be the judgment of 24 March 1994 then, putting the matter very broadly, it would appear that that judgment follows substantially from the refusal of leave to file the eighth amended statement of claim, that refusal being made on 17 March 1994. But however that be and whether the application at the moment is for leave to appeal against the order of 24 March or that on 17 March 1994 (the matter has been variously stated in the documents), I do not think that this is a case in which the appeal would have any real prospect of success. The Court is entitled to invite the parties to indicate what would be the grounds of the appeal and the basis on which it is said that there is a reasonable prospect of success. The Court has done this in the present case. I am by no means satisfied that there would be any real chance of the appeal succeeding. Having regard to that and to what has been said as to the history of the litigation, in so far as it is before the Court, in my opinion this is a case in which the extension should be refused because there would be little or no real prospect of the appeal succeeding in due course. I would therefore dismiss the application for extension of time and, in so far as it is before this Court, the application for leave to appeal. I would dismiss both of the applications with costs. Meagher JA I agree. Cole JA I also agree. Application for extension of time and application for leave to appeal dismissed with costs.