LONG LEYS COMPANY PTY LIMITED v SILKDALE PTY LIMITED [1996] NSWCA 330

LONG LEYS COMPANY PTY LIMITED v SILKDALE PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 26 February 1996

[1996] NSWCA 330

Sheller JA. This is an application that time for the filing of a notice of grounds of appeal be extended. It is supported by an affidavit from the applicant's solicitor which indicates that judgment was given on 7 November 1995. Apparently on that date notice of appeal without appointment was filed. Shortly thereafter the solicitor received a letter from the Court of Appeal Registry which, amongst other things, indicated that the file would be closed if a notice of appeal with appointment was not filed by 25 March 1996.

Mr Burt, the solicitor, apparently read this as meaning that his client had until that date within which to file a notice of appeal with appointment if it wished to proceed with the appeal.

Mr Duncan, who appeared for the applicant, very fairly referred me to a decision of Handley JA indicating that it is the responsibility of solicitors tocalculate times within which steps should be taken to comply with the rules of the Court. I would not wish to cast the slightest doubt on what was said by Handley JA in that respect. However, this case does have some unusual features. On 9 February 1996 — which was two days after the expiry of the time for filing a notice of appeal of appointment — an attempt was made to file such a notice which was then out of time.

Mr Burt in his affidavit has given reasons for late filing which turn upon his unfortunate loss of a diary that he kept. This led him to make the mistake he did as to the time for filing a notice of appeal. Unsuccessful parties in proceedings such as these do have the right of appeal and, in my opinion, that right of appeal should not be denied as a result of the unfortunate circumstances that occurred in this case.