Federal Court Rejects Claimant’s Appeal Extension Request

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] (No 2) [2013] FCA 502 Citation: [APPELLANT] v [NAME] (No 2) [2013] FCA 502

Parties: [APPELLANT] v [NAME] [NAME], [NAME] [APPELLANT] [COMPANY] and [APPELLANT] number: NSD 547 of 2013

Judge: [NAME] J

Date of judgment: 21 May 2013

Catchwords: PRACTICE AND PROCEDURE – application for extension of time to appeal from the Federal Magistrates Court

Legislation: Federal Court Rules 2011 r 1.39

Date of hearing: 21 May 2013

Place: [APPELLANT]: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 10

Solicitor for the Applicant: [redacted]

Counsel for the Respondents: [redacted]

Solicitor for the Respondents: [redacted]

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 547 of 2013

BETWEEN: [APPELLANT]

Applicant

AND: [APPELLANT] [NAME] [NAME]

[APPELLANT]

[NAME] [APPELLANT] [COMPANY]

[APPELLANT] OF ORDER: 21 MAY 2013 [APPELLANT]

THE COURT ORDERS THAT:

1. The Applicant's application for an extension of time in which to file and serve a Notice of Appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 547 of 2013

[APPELLANT]

Applicant

AND: [NAME] [NAME]

[APPELLANT]

[NAME] [APPELLANT] [COMPANY] [APPELLANT] [APPELLANT]

JUDGE: [NAME] J DATE: 21 MAY 2013 PLACE: [APPELLANT] FOR

JUDGMENT 1 On 17 April 2013 I made orders extending the time for filing and serving a notice of appeal by the applicant, Mr [APPELLANT], until 7 May 2013. Order 3 provided in express terms that the grounds of the appeal were to be limited to the question of denial of procedural fairness in accordance with the ex tempore reasons for judgment I handed down on that day. 2 I imposed, as a condition of the extension, a requirement that the matter be referred to mediation before a Registrar of the Court no later than 1 May 2013. The mediation took place but was unsuccessful. Mr [APPELLANT] appears today. He has a legal guardian, namely his daughter, Ms [NAME], who unfortunately could not be present this morning. Nevertheless, I have considered Mr [APPELLANT]'s affidavit very carefully and have taken into account everything that he put to me from the bar table insofar as I was able to accept what was said. 3 Mr [APPELLANT] explains in his affidavit that on 5 May 2013 he was travelling on a train from Museum rail station to Central and that he fell asleep and had with him many bags containing a lot of court documentation surrounding his matter, including a draft notice of appeal with a supporting affidavit. He says that when he reached Newcastle station he found that the two bags that he had with him were taken while he was asleep. He did not see who took the bags but he immediately phoned [NAME] to try to recover them. 4 On 7 May 2013 Mr [APPELLANT] wrote to the [APPELLANT] of the Court. His letter is annexed to his affidavit. It explains the circumstances set out in his affidavit and says that he would need 10 to 14 business days to replace, restore and renew everything that he had lost. Mr [APPELLANT] received a letter from the [APPELLANT] dated 8 May 2013 which informed him that his request for an extension of time "to re-do my appeal" was dependent upon the filing of a properly completed notice of appeal which was due to be filed and served by 7 May 2013. 5 The letter went on to say that, if Mr [APPELLANT] had not complied with this order he would need to seek orders of the Court allowing him to file the notice of appeal; that is to say a further extension of time. On 10 May 2013 Mr [APPELLANT] filed an interlocutory application requesting a further extension pursuant to Rule 1.39 of the Federal Court Rules 2011 (Cth). 6 Mr [APPELLANT], who appears for the [APPELLANT], [NAME], opposes the application for an extension of time. He points to a number of matters which he says I should take into account in refusing the application. First, he points out that notwithstanding the fact that Mr [APPELLANT] obtained a replacement of court documents no later than 9 May, it is now 21 May 2013 but no draft notice of appeal is attached to the application. Mr [APPELLANT] does not seek to put in issue Mr [APPELLANT]'s explanation of the circumstances in which he says he lost the court papers, rather, he emphasises that the order which I made on 17 April 2013 was limited to the question of denial of procedural fairness. 7 In particular, I did not, he submits, contemplate in the draft notice of appeal grounds which required a reconsideration of all of the factual matters which Mr [APPELLANT] apparently wishes to re-litigate. Mr [APPELLANT] submits that although Mr [APPELLANT] requested 10 to 14 business days in his letter, in fact Mr [APPELLANT] is retired and that more than sufficient time has elapsed. The substance of Mr [APPELLANT] submission is that Mr [APPELLANT] has had more than sufficient time to prepare a draft notice of appeal. He says that even though Mr [APPELLANT] is only requesting until Friday of this week I should nonetheless refuse the application. 8 Mr [NAME] submits that it is evident in the light of what is revealed in Mr [APPELLANT]'s affidavit that he is not seeking to obtain the just, cheap and quick resolution of this appeal. 9 He also draws my attention to paragraph [3] of my reasons for judgment of 17 April 2013. On that occasion I was informed by Mr [APPELLANT]'s legal representative that the default judgment on which the sequestration order was made was set aside by an order of the [ADDRESS] made on 28 March 2012. However, I have before me today an order of the [ADDRESS] made on 8 June 2012, which shows that the order made on 28 March 2012 setting aside the default judgment was itself set aside. Moreover, it is evident from the orders of the [ADDRESS] of 8 June 2012 that the default judgment upon which the sequestration order was based remains on foot and stands. 10 In all of those circumstances, notwithstanding the concerns that I have for Mr [APPELLANT], which I expressed in my earlier reasons for judgment and the fact that I accept what he put to me today about his ill health, I cannot, in all of the circumstances set out above, further extend the time for filing a notice of appeal.

Accordingly, the interlocutory application filed on 10 May 2013 is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 21 May 2013