Thursday, 9 September 2010

Out of time appeals allowed to proceed due to solicitor's mistake

In the recent Full Court of the Family Court casse of Manolis and Manolis, and Grefeld and Grefeld, out of time appeals were allowed to proceed due to errors in calculation by the solicitors.

In Manolis  the husband was allowed to proceed with an appeal that was one day late for filing because the husband's solicitor had made a mistake counting the days, and it was not a mistake of the husband.

Justice May, sitting as the Full Court, stated:

Balancing the delay of one day (being the mistake of the lawyers not the husband) the fact that there is no prejudice to the respondent other than the prospect of an appeal being heard as against what may prove to be limited prospects of success, the leave should be granted. The mistake being that of the lawyers and filing only one day out of time is of particular significance (see Jess v Scott and Others (1986) 70 ALR 185 a decision of the Federal Court particularly at p.189 to 191 where the solicitor in that matter was also out of time by one day).

Without considering the merits of the appeal any more than is necessary for this application, it can be seen that to deprive the husband of an opportunity to appeal, where the filing was one day out of time may work an injustice against the husband.

In Grefeld,  the solicitor for the wife made a similar error:

  1. After the decision of the trial judge was handed down on 22 June 2010 the solicitor for the wife was asked to consider an appeal. Counsel who conducted the trial was overseas at the time and was not available until 5 July 2010. On that day the solicitor contacted counsel and requested comment on the prospects of success of an appeal and asked that a notice of appeal be drafted. Counsel was also briefed to provide a response to an application for costs, which the second respondent made against the husband and the wife.
  2. On 20 July 2010 a draft notice of appeal was forwarded to the wife’s solicitor, by counsel and there was a discussion as to whether the appealed need to await the outcome of the costs judgment.
  3. When the solicitor attempted to file the notice of appeal it became apparent that he had miscalculated the twenty-eight day timeframe. The wife was in fact one day out of time.

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