Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: followed
The applicant refers to the authorities of Parker v The Queen [2002] FCAFC 133 , Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and Jess v Scott and Others (1986) 12 FCR 187 , each of which refer to the principles to be considered when dealing with an application under O 52 r 15(2) of the Rules for extension of time. Such rule provides: (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 64 Order 52 Rule 15(2) of the Rules requires the applicant to demonstrate that 'special reasons' exist justifying the grant of leave to extend time in which to appeal. The Court must consider whether there has been a satisfactory explanation for the delay; whether there is prejudice to any other party; and whether the grounds for appeal satisfy the Court that there are prospects of success: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 349; Parker v The Queen [2002] FCAFC 133 ; Jess v Scott and Others (1986) 12 FCR 187. The Court will consider each of the above hereunder. 65 A satisfactory explanation for the delay is an essential 'pre-condition to the exercise of discretion' in considering an application for extension of time to appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348. 66 The first reasons were delivered on 12 February 2007. Order 6 was made on 19 February 2007 and on 28 February 2007 the primary Judge delivered his second reasons. There is no evidence of any legal advice that might have been provided to Mr Gulson and Triad by their lawyers concerning the effect of his Honour's judgment and orders by Cordato who conducted the proceedings for Triad. 67 Mr Gulson acknowledged that he read the first reasons carefully. Orders were thereafter made on 14 February 2007. He did not attend the making of the orders on 19 February 2007 and was not present in Court on 28 February 2007 when the second reasons were delivered. He states that he did not recall the second reasons being brought to his attention. He also states that he instructed new solicitors to act on behalf of himself on or about 13 March 2007. 68 Mr Quigley was instructed after the letter of demand was received from the liquidator. Mr Quigley has testified that he asked his client to provide him with copies of the relevant documentation concerning the litigation and was provided with a copy of the first reasons. Order 6 was not provided, nor was any other judgment provided to Mr Quigley by Mr Gulson. Mr Quigley was provided with the orders made on 12 February 2007, being the first orders arising out of the first reasons. Mr Quigley deposed that his instructions on behalf of his client were to prepare a letter in response to the letter of Gadens, solicitors for Mr Kerr, dated 13 March 2007. Mr Quigley did not make any inquiries of counsel that had been retained by Triad, nor is there any evidence that he sought information from Triad's former solicitors. Mr Quigley prepared his letter which was forwarded on 5 April 2007 in reply to Gadens' letter. Such letter did not refer to the implications of Option A or Option B in the first reasons but instead referred to one portion of the first reasons where his Honour found that both TFI and Triad were entitled to consultancy fees in excess of $1,000,000. 69 The Court observes that Mr Quigley's letter dated 5 April 2007 refers to his awareness that orders had been made by the Court. Mr Quigley's letter states: The orders to which you refer in your letter are to be understood in the context of the principal relief granted by the Court in connection with the winding up of BGR. The various further orders give effect to the Court's conclusion in relation to a variety of matters of financial adjustment as between the respective shareholders in BGR. 70 The letter from Gadens to Mr Quigley dated 24 July 2007 referred to the effect of Order 6. Mr Quigley testified that at that date he had not been provided with a full set of orders and that he was unsure of what orders had been made. Mr Quigley said that he was not aware that the proceedings had been stood over after the first reasons had been given. Mr Quigley said that only after receiving the letter from Gadens dated 24 July 2007, which Mr Quigley pointed out was more than three months after he had written his letter, did he become aware that Order 6 existed. He said there was 'some confusion about how many orders have been made' and only then made an enquiry of the previous solicitors in relation to a full set of orders. The implication arising from this answer is that the former solicitors apparently held a full set of the orders. 71 The Court accepts that Mr Quigley was not fully informed of the orders of the Court, especially Order 6, at the time he wrote his letter dated 5 April 2007. The Court also accepts that Mr Quigley's retainer was limited to the purpose of writing such letter.