The Context: A Lesson from HOOPER v COCKLES

In HOOPER v COCKLES PTY LTD [2025] WASCA 143, the Court of Appeal was required to determine an application that, in the words of Vaughan JA, "should never have been necessary." The appellants sought a modest one business day extension to file their appellant's case, from 12 September to 15 September 2025. The reason was straightforward: counsel's unrelated mediation had overrun its scheduled time, preventing finalisation of the appellant's case on the due date. Despite the minimal nature of the extension sought and the absence of any specific prejudice, the solicitor for the second and third respondents refused consent, necessitating a formal application to the court.

The Power to Extend Time

The court's power to extend time in the Court of Appeal derives from Order 3 rule 5 of the Rules of the Supreme Court 1971 (WA), which applies to the Court of Appeal through the Supreme Court (Court of Appeal) Rules 2005 (WA). As established in Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 at [46], this rule confers a broad remedial power on the court to relieve against injustice (Billabong Gold at [47], [65], [73]).

Order 3 rule 5(1) empowers the court to extend the period within which a party is required or authorised to do any act in proceedings. This power may be exercised by a single judge of appeal or a Court of Appeal registrar. The discretion is to be exercised in the interests of justice, weighing all relevant circumstances including the reason for the delay, any prejudice to other parties, and the impact on the conduct of the litigation.

The Professional Duty to Facilitate Justice

The decision in HOOPER v COCKLES underscores a fundamental principle that extends beyond mere procedural courtesy. Legal practitioners have a positive duty to assist the court in attaining the objects set out in Order 1 rule 4B of the Rules of the Supreme Court 1971 (WA). These objects include:

Disposing efficiently of the business of the court (r 4B(1)(b))
Maximising the efficient use of judicial and administrative resources (r 4B(1)(c))
Ensuring that the applicable procedure and costs are proportionate (r 4B(1)(e) and (f))

This duty is not merely aspirational. As Vaughan JA emphasised, a solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty (Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 3.1). Barristers are subject to similar overriding duties (Legal Profession Uniform Conduct (Barristers) Rules 2015 r 4(a), (d), r 23).

When Consent Should Be Given

The principles emerging from HOOPER v COCKLES establish clear guidance for when legal practitioners should consent to extension requests:

Consent should ordinarily be given where:

The extension sought is reasonable in duration
The extension will not adversely affect any future hearing date
The extension will not otherwise disrupt the conduct of the litigation
No specific prejudice will be suffered by the opposing party

The absence of consent should be reserved for circumstances where:

Specific, identifiable prejudice would result from the extension
The extension would affect scheduled hearing dates
There has been a pattern of repeated delays without adequate explanation
The extension would materially disrupt case management directions

The Consequences of Unreasonable Refusal

The court in HOOPER v COCKLES made clear that unreasonable refusal to consent to minor extensions wastes judicial resources and unnecessarily increases costs. While the court ultimately made no order as to costs in that case (as none were sought), Vaughan JA explicitly warned that "a different position may prevail in the future if the present circumstances are replicated."

The judgment contemplated the possibility of requiring solicitors to show cause under Order 66 rule 5 of the Rules of the Supreme Court 1971 (WA) where consent is unreasonably withheld. This signals the court's willingness to scrutinise the conduct of legal practitioners who obstruct the efficient administration of justice through tactical or unreasonable refusals.

Practical Considerations

Legal practitioners should approach extension requests with the following considerations:

Act promptly: When an extension becomes necessary, seek consent at the earliest opportunity
Provide reasons: Explain the circumstances necessitating the extension clearly and honestly
Be proportionate: Ensure the extension sought is no longer than necessary
Document communications: Keep records of consent requests and responses
Consider reciprocity: Professional courtesy in granting reasonable extensions fosters efficient case management

The Broader Principle

The decision in HOOPER v COCKLES reflects a broader principle about the role of legal practitioners in the justice system. As Vaughan JA observed, agreeing to reasonable extensions not only fulfils a practitioner's duty to the court but also benefits their own client by avoiding unnecessary costs associated with formal applications.

The message is clear: legal practitioners must rise above tactical gamesmanship and recognise their role as officers of the court. The efficient administration of justice requires cooperation where it does not prejudice legitimate interests. As stated in HOOPER v COCKLES at [16], "a legal practitioner will not be in breach of any duty to his or her client in agreeing a reasonable extension of time which neither adversely affects a future hearing date nor otherwise disrupts the conduct of the litigation."

Conclusion

The principles established in HOOPER v COCKLES PTY LTD [2025] WASCA 143 serve as a reminder that the practice of law is not merely an adversarial contest but a professional endeavour aimed at the just and efficient resolution of disputes. Legal practitioners who understand and embrace this principle will find themselves better serving both their clients' interests and their paramount duty to the court.