Case: Jess v Scott and Others (1986) 12 FCR 187
Outcome: cited
If her Honour's order is a final order, the court must be satisfied that special reasons have been made out in order to grant leave to file and serve a notice of appeal out of time. The expression 'special reasons' describes a flexible discretionary power conferred upon the court in those cases where some distinguishing or differentiating feature about the case justifies departure from the orthodoxy of filing and serving a notice of appeal within the time expressly limited by the rules. The flexibility of the discretion conditioned by the interests of justice is not constrained in its amplitude by any narrow approach to the expression ( Jess v Scott and Others (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ). Nevertheless, an applicant seeking leave must demonstrate some feature about the case which persuasively warrants departure from the orthodox position (see also Jess v Scott per The Court at 195). 35 In this case, however, Mr Rogers has sought to bring an application within Order 52, rule 15(1)(b). In other words, Mr Rogers has made an application within 21 days of pronouncement of the judgment by which Mr Rogers seeks further time or an extension of time to file and serve a notice of appeal. Order 52, rule 15(1)(b) does not in terms require an applicant to demonstrate 'special reasons' in seeking an allowance of further time by the court. The reference in Order 52, rule 15(2) to 'notwithstanding anything in the preceding sub-rule', is intended to make clear that the scope of the discretion is not in any way limited by the terms of Order 52, rule 15(1). It seems to me that an application made within 21 days of the date of pronouncement of judgment by which an applicant seeks further time for the filing and serving of a notice of appeal is not to be subsumed within a requirement to establish special reasons as if an application had been made beyond the 21 day period at the outset. 36 Nevertheless, there must be some demonstrated circumstances upon which the court might act in allowing further time. The particular circumstance advanced by Mr Rogers is that during the period between pronouncement of the judgment and the hearing of this application in February 2007, Mr Rogers has not been in a position to prepare a notice of appeal and therefore he proceeded on the footing that an application ought to be made within 21 days seeking an extension of time within which to prepare, file and serve a notice of appeal. At the date of filing the application (15 December 2006), Mr Rogers anticipated that he would be in a position by 22 January 2007 to have obtained advice and formulated, filed and served a notice of appeal. 37 Because the application was listed for determination in February 2007, Mr Rogers has not taken steps to prepare a notice of appeal by 22 January 2007 or at all. Rather, Mr Rogers seeks to identify by oral submissions grounds going to an arguable error on the part of her Honour, secure an allowance for such further time as the court determines and then file and serve a notice of appeal within such time as might be allowed. 38 I propose to determine the application on the following basis.