AVENHOUSE v THE COUNCIL OF THE SHIRE OF HORNSBY [1995] NSWCA 32

AVENHOUSE v THE COUNCIL OF THE SHIRE OF HORNSBY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 13 November 1995 [1995] NSWCA 32

PRACTICE AND PROCEDURE — extension of time — notice of appeal without appointment — expiry of time — prior to expiry, appellants' solicitor receives notification from Court as to last day for appeal — notification erroneous — solicitor relies upon it — becomes out of time — seeks extension by consent — consent withheld — time default minor — held: In the circumstances, the default should be cured and the extension granted for the filing of a notice of appeal with appointment.

LEGAL PRACTITIONERS — legal professional privilege — waiver — application for extension of time — affidavit states opinion of senior counsel that there are prospects of success in appeal — call for opinion — call resisted on ground of legal professional privilege — whether privilege waived by reference — held: Point not decided — question reserved.

Supreme Court Rules, Pt 51 r 5(4).

Kirby P. This is an application for an extension of time in which to file a notice of appeal.

Misleading letters from court registry

The circumstances in which it arises appear in the affidavit of Mr Robert Heyblok, solicitor for the claimants. The claimants wish to appeal from a judgment of 27 June 1995 by Spender AJ. That judgment followed a trial lasting no fewer than twenty-two days of hearing in the litigation between the parties. It appears that his Honour dismissed the claimants" action holding, as I have been informed, that although there was a breach of duty on the part of the Council of the Shire of Hornsby, no damage for which recovery could in law be secured had been proved.

The claimants promptly, on 21 July 1995, filed a notice of appeal without appointment. In accordance with the Rules, the time for the filing of the appeal would, therefore, have expired on 23 October 1995, that being theMonday following the third month anniversary. However, the claimants" solicitors had received a letter of 24 July 1995, a copy of which is annexed to Mr Heyblok's affidavit. It indicated: