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Case Study : Merriett & Merriett, Appeal Denied in the Interests of Justice.

FLAST Case Review : Merriett & Merriett [2018] FamCAFC 225 (22 November 2018)

This was an application in an for an extension of time in which to file a Notice of Appeal.  The Court considered the explanation for the delay and the merits of the proposed appeal (prospects for success) and in the interests of Justice dismissed the Application.

The case is interesting in that it also involved consideration of a judgement from the Circuit Family Court of the Republic of Ireland in relation to property matters.


AT [13] The principles to be applied in an application for an extension of time are set out in the well-known case of Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480:

...The grant of an extension of time under this rule is not automatic.

The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.

The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262.

This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.

In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185.

When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.

It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

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