BURRELL vy CAMERON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL STEIN JA 2 March 1998 [1998] NSWCA 47 Stein JA. This is a motion brought by the claimants, Robert Leslie Burrell and Joan Margaret Burrell seeking an order that time to appeal from the decision of Windeyer J given in the Equity Division on 4 April 1997 be extended. There was a holding appeal which lapsed and the matter is complicated by a second set of proceedings between the same parties heard by Bryson J later in 1997 and he gave Judgment, I think, in early December of that year. It has been indicated on behalf of the claimants that an appeal will shortly be instituted against the decision of Bryson J. The proceedings between the same parties before Mr Justice Windeyer, which is the subject of this motion, and the hearing before Bryson J, are related in that the evidence in the former case was annexed to affidavits in the latter case and then amplified by further evidence. The proceedings relate to options over a property known as "Pretoria" and the questions involved were whether or not the "Burrell" option, if I can use that expression, was on foot at a particular point in time or became terminated by another option known as the "Lennox" option. The second set of proceedings dealt with the Lennox option. The first set of proceedings before Windeyer J dealt with the Burrell option. What I am about to say concerning the proceedings is brief in the extreme but I have had occasion to look at some of the documents and I have been referred to extensive affidavits filed on this motion. justice in the proceedings before Windeyer J because of the non production of the file note. This is based upon Commonwealth Bank v Quade (1991) 178 CLR 134. No other grounds in the draft notice of appeal, other than the three which embrace this point, are proposed. In applications such as this it is well to take note of the principles to be applied. Whilst the central purpose of the exercise of the discretion to extend time is justice between the parties, some of the ingredients in applying the discretion relate to matters such as the history of the litigation, the conduct of the parties, the nature of the proceedings and the consequences for the parties if time to extend is refused. As McHugh J has made clear in Gallo v Dawson (1990) 93 ALR 479 at 480, one of the factors which is relevant to the exercise of discretion is the prospects of the claimants succeeding in the appeal. His Honour has admonished judges exercising the discretion to bear in mind that in examining such an application, the opponent has the vested right to retain the judgment unless the application to extend time is granted. I apply these principles to the circumstances of this case. The affidavits in support of the motion contain some explanations of the delay since the original decision of Windeyer J some 11 months ago. I am prepared to assume, for the moment, that the delay was justified up until 8 September 1997 when Mr English says he first saw the file note. The explanations for the delay post September appear to be, first, to allow the matter to proceed before Bryson J and, second, 2 UNREPORTED JUDGMENTS that the law vacation intervened because Bryson J's judgment was handed down on 2 December 1997 while the affidavits in support of this motion were sworn on 21 and 22 January 1998. The notice of motion itself was not filed until 11 February 1998. I am not sure that I necessarily accept as an adequate explanation after 8 September that it was determined to allow the matter before Bryson J to proceed first before making such an application. I would have thought that good sense would have required, at least, to holdthe situation and a notice of motion be taken out fairly promptly. Although there are some factual disputes, which I am not in a position to determine, about the delay, I think it may be said that the explanations of the delay to 11 February 1998 are inadequate. However, I would not use that basis alone to refuse the notice of motion. One factor which is material to the exercise of the discretion is that there does not appear to be any reason to attribute any blame to the opponent for the non production of the file note. Were it otherwise, I think the situation may be different. Three issues, though, need to be looked at which, to my mind, militate against the extension of time. The first is whether or not the file note would have made any difference to the proceedings before Windeyer J. It is clear that there was evidence before his Honour about the meeting of 24 July. What this motion on behalf of the claimants claims is that had the file note been available, the conversations given before his Honour as to what occurred at that meeting on 24 July 1996 would have been more extensive and the Burrells case different. This may have led to a different finding by his Honour. Having read Windeyer J's judgment, examined the file note and seen what Bryson J said in relation to the meeting of 24 July 1996, it is not self-evident that the file note would have made any difference at all to the proceedings before Windeyer J had it been produced on 28 March or prior to the hearing. The second issue is whether the evidence of the file note is fresh evidence. I must say that I have reservations that it is. Again, it is not self evidently fresh evidence. The last issue which I think helps tilt the balance in the exercise of the discretion against the claimants is the findings of Bryson J as to the conversations at the meeting of 24 July 1996. The parties to the litigation are the same as before Windeyer J and it seems to beeminently arguable that an issue estoppel quite explicitly arises upon Bryson J's findings which now binds the Burrells. If the time were extended to allow the appeal on the grounds set forth in the draft notice of appeal (attached to the notice of motion) the appeal would almost certainly fail on any one or more of the grounds that I have mentioned. These include whether leave to call fresh evidence is refused, assuming it be fresh evidence; whether or not the Court of Appeal would see that the result before Windeyer J would not have been any different; whether it was appropriate to grant a new trial on the basis of the file note and whether the Burrells are bound by Bryson J's findings and an issue estoppel arises. It seems to me that almost certainly an appeal on the basis of the draft grounds of appeal would be futile and close to hopeless. Accordingly, I have come to the conclusion that the notice of motion should be refused. The notice of motion is dismissed with costs. Orders accordingly.