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: If a Notice of Appeal with appointment or hearing has not been filed, the Registry will close this file on 27 October 1995. This letter, understandably, lulled the claimants" solicitor into a false sense of security. This was reinforced when, after 8 September 1995, he received a further letter from the Registry of the Court which said: A Notice of Appeal is required to be filed in the above matter on or before 27 October 1995. Failure to file this appeal will result in the appeal being discontinued. These letters from the Court were wrong. The information which they contained, misstated the obligations of the claimant under the Rules. 2 UNREPORTED JUDGMENTS The solicitor for the claimants in fact relied on them. His affidavit has not been challenged. In that regard, I would accept without reservation that, particularly having received such a letter as the second letter, an ordinarily prudent solicitor, would not trouble to challenge the communication from the relevant Registrar of the Supreme Court. So it proved in this case. When the difficulty of the error was discovered, the consent of the opponent was sought to the extension of time. That consent has not been forthcoming. I was inclined to think that this action was completely unreasonable in the circumstances. However, as has been pointed out, the litigation lasted twenty-two days. The resistance of the opponent to the extension of time is therefore perhaps understandable, although not very meritorious. Legal professional privilege The challenge of the opponent to the extension appears to have rested upon the fact that the opponent contends that the appeal has no real prospects of success. In par 18 of the affidavit of Mr Heyblok, it is said: Following receipt of advice of prospects of success on appeal from senior counsel, I believe the appeal has strong prospects of success, particular in the area of economic loss/loss of profits. When challenging this paragraph, counsel for the opponent called for the advice of senior counsel referred to. This led to a claim by the claimants for legal professional privilege. That position was outlined to me at the beginning of the argument on the motion. It was contended for the opponent that the reference, in par 18, to senior counsel's opinion amounted, at least in part, to a waiver of the privilege by the claimants. In those circumstances, if the claimants wished to rely upon senior counsel's opinion, they would be duty bound to produce it, or at least the relevant parts of it. Reference was made to a decision of Hill J in the Federal Court of Australia concerning the waiver of legal professional privilege. I have not examined that decision because I indicated in argument to counsel for the opponent that, the default being so short in time and having been occasioned (at least substantially) by the misinformation from the Registrar of the Court, I would be inclined to cure the default in any case. I can, therefore, leave to another occasion, when it is essential to the resolution of an issue before the Court, the question of the effect of a paragraph such as par 18 of the affidavit, and the availability, in such circumstances, of the advice of a barrister which is given concerning the prospects of success of an appeal before the Court. My initial reaction to the suggestion that the advice would be required to be produced, against resistance by the client (whose privilege it is) is antipathetic. Cf Goldberg v Ng & Ors, High Court, unreported, 3 November 1995, per Deane, Dawson and Gaudron JJ, 6ff. However, there is recentauthority, including the High Court of Australia, on the subject of legal professional privilege. I will, therefore, delay any opinion on such matters until an occasion arises where it may be necessary to express it. Costs. The question of costs has been argued with the vigour that is usually reserved to such questions. The proper costs order, in my view, is that the costs should abide the outcome of the appeal. On the one hand, counsel for the opponent urged that the claimants should pay the costs, because no solicitor should rely upon advice from the Court but should have his or her own system for monitoring the compliance of process with the URJ = AVENHOUSE v THE COUNCIL OF THE SHIRE OF HORNSBY (Kirby P) 3 Rules of Court. Such a system would, if prudently introduced, have thrown up in this case the last date for filing of a notice of appeal with appointment. Such default should occasion an order for costs against the claimants. On the other hand, counsel for the claimants pointed out that the error of the Court being such and the time default being so slight, reasonable conduct on the part of the opponent would have resulted in a ready consent to the extension of time. For the unreasonable withholding of consent, the opponent should have to pay the costs. There is, of course, merit in each of these arguments. However, I am comforted by the fact that each of the parties tells the Court, the one on affidavit and the other by the statement of its counsel, that they will succeed in the appeal and that the case of the opponent is quite hopeless. In such circumstances, it will do no mischief to either of them to require them to await the outcome of the appeal which they severally face with such equanimity and confidence. The winner will then secure the costs where they are found to fall. The orders which I make are: 1. Vacate any order of the Registrar dismissing the proceedings for failure to file a notice of appeal with hearing or appointment as required in Pt 51 r 5(4) SCR within the time specified by that rule;2. Extend the time for filing of the notice of appeal with appointment until 2.00 p.m. this day; 3. Direct that the file of the court be handed into the custody of the solicitor for the claimants (the proposed appellants), so that he may take it with a signification of these orders to the Registry, the intent of the Court being that the appeal will be filed today; and 4. The costs of the motion to be costs in the appeal. 1. Vacate any order of the Registrar dismissing the proceedings for failure to file a notice of appeal with hearing or appointment as required in Pt 51 r 5(4) SCR within the time specified by that rule; 2. Extend the time for filing of the notice of appeal with appointment until 2.00 p.m. this day; 3. Direct that the file of the court be handed into the custody of the solicitor for the claimants (the proposed appellants), so that he may take it with a signification of these orders to the Registry, the intent of the Court being that the appeal will be filed today; and 4. The costs of the motion to be costs in the appeal. Counsel for the claimant: M D Young Solicitors for the claimant: Wight and Strickland Counsel for the opponent: S A Gregory Solicitors for the opponent: Phillips Fox