14.12: Contents and format of notices of appeal and cross appeal
14.8: Filing a notice of appeal

Case Summary

The Applicants were granted permission to Appeal. Pursuant to Rule 14.8(2)(a)(ii), a Notice of Appeal must be filed within 10 days after permission is granted. The Applicants did not file a Notice of Appeal in time and brought this Application to extend the time to file pursuant to Rule 14.8(2)(a)(ii).

Antonio JA noted that in determining whether to extend time to file a Notice of Appeal the Court will consider whether:

  1. There was a bona fide intention to Appeal while the right existed and that there was a special circumstance that would excuse failure to Appeal;
  2. There is an explanation for the delay and whether the other side was so seriously prejudiced by delay that it would be unjust to disturb the original Judgment;
  3. The Appellant has taken the benefits from the Judgment from which the Appeal is sought; and
  4. The Appeal would have a reasonable chance of success if allowed to proceed.

The Applicants relied on Rule 14.12(3)(a), which provided that where permission to Appeal was required, a Notice of Appeal must include the particulars of or a copy of the Order granting permission to Appeal. It was argued that a Notice of Appeal could not have been filed prior to the receipt of the filed Order. Antonio JA did not find this persuasive. It is trite law that time periods run from when an Order is made, not when they are signed or served. 

Antonio JA was satisfied that the Applicant’s had explained the delay in filing their Notice of Appeal and the Respondents were not prejudiced by the delay. Accordingly, Antonio JA granted the Application to extend time.

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