A West Australian judge was critical of several lawyers for bringing an application that “should never have been necessary”.
Justice John Vaughan said he was close to ordering a solicitor to show cause for why they did not agree to a one business day extension sought by the appellant’s legal team, which meant the matter had to go before a single judge of the Court of Appeal.
The matter concerned leave to appeal from orders made in the general division of the Supreme Court of Western Australia. The deadline of Friday, 12 September, was due to an earlier extension.
In an affidavit to support the new extension, the solicitor for the appellant told Justice Vaughan he spoke with counsel and was informed the half-day that had been set aside to double-check the grounds of appeal had been taken over by a separate matter.
As a result, the appellant’s solicitor reached out to the solicitor for two of the defendants to ask them to agree to a one business day extension, including the weekend in between. This was refused.
Justice Vaughan said the interests of justice were “strongly in favour of granting the extension of time sought by the appellants”.
While he acknowledged the initial delay was due to the appellants, the further extension was “so minor as to be insignificant”.
“Importantly, it was not shown – or even suggested – that the proposed extension would cause specific prejudice,” the judge found.
Justice Vaughan said the application was unnecessary, first because the appellant’s counsel “could and should have” better managed his time so the appeal was not risked by his other commitments.
The defendant’s solicitor should have also consented to the extension.
“This would have meant that, instead of an application in an appeal supported by an affidavit and its associated costs, the extension would have been dealt with quickly and efficiently by a simple consent notice,” Justice Vaughan said in his written reasons.
The court pointed to a legal practitioner’s duty to best assist the court to efficiently dispose its business under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 and the Legal Profession Uniform Conduct (Barristers) Rules 2015.
A legal practitioner would not be in breach by agreeing to a reasonable extension of time “which neither adversely affects a future hearing date nor otherwise disrupts the conduct of the litigation”.
“To the contrary, by avoiding the need for an unnecessary application, the legal practitioner will be acting in accordance with his or her duty to assist the court in attaining the objects,” Justice Vaughan said.
“There is an added benefit: the legal practitioner’s client will not incur the costs associated with an unnecessary application.”
While he found it would not be appropriate to order the defendant’s solicitor to show cause, Justice Vaughan noted a “different position” could come up if the issue is repeated.
“Legal practitioners practising in this court ought to agree to requests for a reasonable extension of time where doing so will not adversely affect any future hearing date or otherwise disrupt the conduct of the litigation,” Justice Vaughan said.
The case: Hooper v Cockles Pty Ltd [2025] WASCA 143.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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