In an incredible twist of fate, Cynthia Prior may well extract some more money out of this situation yet – just not from the intended source.
In circumstances that can only be described as bizarre, Prior’s lawyer has failed to lodge her client’s appeal within the 14 day time limit and has incredibly tried to blame the judge and the court registry:
An affidavit sworn by Susan Moriarty, the solicitor for Cindy Prior in her Federal Circuit Court case under section 18C of the Racial Discrimination Act against the Queensland University of Technology students, appears to direct some of the blame for the missed deadline to judge Michael Jarrett.
Judge Jarrett threw out Ms Prior’s case on November 4 and cleared the students of all racial hatred claims, ruling that the Facebook posts in May 2013 were not capable of being unlawful under section 18C. He ruled there was no evidence one of the three students, Calum Thwaites, had written a post with the word “n******”.
Ms Prior and her lawyers had 14 days to lodge an appeal, but they wrongly believed they had up to 21 days with a deadline of November 25…
Ms Moriarty’s newly sworn affidavit which explains the mishap states: “On 21 November the matter was relisted for mention before his honour where it was communicated that advice was being sought about lodging an appeal.
“Counsel for (Ms Prior) stated words to the effect that the 21-day deadline of 25 November 2016 to appeal was fast approaching. His honour replied words to the effect of ‘well a lot can happen in the 28 days’.
“His honour made no reference to any requirement for leave to appeal and appeared to believe the parties had a further seven days in which to file.”
Ms Moriarty also referenced a contact she had with the court registry, and said: “Based on this, the firm believed we had 21 days in which to file a notice of appeal.” [TMR: since when has the court registry been responsible for dispensing legal advice to be relied on by lawyers?].
Senior legal sources said yesterday it was an unusual strategy of Ms Prior’s legal team to sheet any responsibility to Judge Jarrett for the missed deadline, particularly as it already had been too late to appeal when the case came up again on November 21.
This train wreck will now end up for special consideration before a judge – who will decide whether the 14 day filing period should be extended. The best I can say is that the decision here could go either way and you might as well flip a coin.
Given that Prior is a professional victim, it’s almost certain that she will sue her lawyer if her appeal is ultimately not accepted on the basis that the filing deadline was missed. The beautiful irony of it all is that her lawyer’s only real hope – and a good one at that – would be be to argue that, despite her negligence, Prior’s case was so hopeless that she wasn’t going to win anyway!
Note to Ms Moriarty: if you haven’t done so already, you’d better get on the phone to your insurer.