Six minutes past midnight: what happens if we miss the Court deadline?

Hitting Court filing deadlines is one of the most important issues in litigation. It can sometimes be hard to tell the difference between deadlines that are routinely relaxed and deadlines that will knock out a claim if you miss them.

While the first step is engaging experienced lawyers who know these processes well, Court deadlines are a high-risk area of litigation. It pays to know the process yourself to avoid unnecessary legal expense or, at worst, losing your claim (or defence) altogether.

A few minutes late doesn't matter, does it?

The Glencore transfer pricing litigation is a recent example. While it was largely expected the ATO would appeal its loss in the first instance proceeding in the Federal Court, it filed the appeal six minutes late. The Federal Court's particular online filing rules mean that any document filed after 4:30pm is taken to be filed the next business day. In this case, the Federal Court Registry adopted those rules strictly and rejected the late filing.

The ATO was required to file an extension of time application and supporting affidavits. Though the Judge ultimately granted the ATO's extension, he ordered the ATO bear its own costs of doing so.

Wouldn't a Judge give us a bit more time?

Not always. Filing late may put you outside the Court's jurisdiction or a Judge might find that there was no reasonable excuse for the delay. For example:

• A Court refused to allow the filing of a general protections application under the Fair Work Act despite being only four days late (Potts v Kings Warehouse Administration [2014] FCCA 2671). Ignorance of Court processes was no excuse.
• A Court struck out a tax appeal despite being filed only one day late (Bayeh v Deputy Commissioner of Taxation (1999) 100 FCR 138).
• Courts refused to extend the time for an application to set aside a statutory demand despite being filed only one day late (David Grant v Westpac Banking Corporation (1995) 184 CLR 265).
• A Tribunal struck out an appeal against assessment of State duties where the applicant was late paying the whole of the unpaid duties to the revenue authority. The applicant was $51 short and paid the amount only three days late (Market Square (Queensland) v Commissioner of State Revenue [2013] QCAT 578).

How do you manage the risk of Court deadlines?

• Arrange for early filing: Agree a plan with your lawyers for filing early. Depending on the Court, this could be a day early or a lot more. For example, some Federal Court matters first need to be allocated to an appropriate Judge who then decides whether to accept or reject the lodgement. The process can sometimes take days or even a week.
• Know the Court's practice: Some Registries close earlier than the advertised time, others refuse to take unstapled documents, and most will reject documents without the correct filing fee. Know what to present, what to say and who to talk to, or have lawyers who do.
• Running out of time? Get something in: Some time-critical documents are formalities that can be filed first and amended later. If you're running out of time, the priority may be getting something in so you don't lose your rights.
• But check you have the basics: Some defects can be fixed, others are incurable. Minor errors may be fatal in an application to set aside a statutory demand. A Court challenge to most State taxes will fail if you have not paid the tax before filing your appeal.
• Check the documents: If possible, ask your lawyer to send you the documents with the Court's stamp to help you confirm lodgement before the deadline passes.

We missed the deadline. Can we still file?

As a first step, get urgent advice on the specific jurisdiction including whether late filings are generally accepted, and the minimum requirements for an effective filing. In many cases, you might be able to file late, but only after convincing a Judge. As a general rule, you can expect that:

• you will be expected to provide affidavits explaining why you were late and why the deadline should be extended;
• your barrister will need to show that you have an arguable case; and
• you may be required to bear costs and the other side's costs of the extension application regardless of whether you win the overall litigation.