ATTORNEY-GENERAL for the STATE of SA v BURKE No. SCGRG-95-1420 Judgment No. S6730

[1998] SASC 6730

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
V  BURKE

ACTION NO 1420 OF 1995

Judge Burley

By application filed on 19 December 1997, the defendant seeks the following order:-

“extending the time under R95.11 etc in which to set down his Full Court appeal in this action from Weds 17.12.97 as prescribed by Judge Burley (assuming that the nature and provisions of s. 39 do not make this a right or automatic) until the appeal books can realistically be produced, taking into account the financial and other restraints on the defendant. There is a brief supporting affidavit.”

In his affidavit in support the defendant has said:-

“1..... It has seemed advisable to obey today an order of 15 October by the Residential Tenancies Tribunal to pay $470 to my former landlord, Mr Luigi Lippis while seeing no reason to abandon my DC appeal etc re an off-setting claim or my challenge to the AG’s view as to the amount he should pay for his appeal book copy; both matters will require considerable further time and effort to pursue.

2...... I have spent considerable time also since Judge Burley’s order in preparing an application for discovery of documents which I see as indispensable to an effective FC appeal. This discovery was originally specified in the action 3166/84 ‘before suit’ which was adjourned sine die in 1984. (My original intention was to seek this discovery first through a re-start of 3166/84, consistent of course with the s.39 orders.)”

......... I commence by referring to Action No 3166 of 1984 referred to by the defendant in his affidavit.  This action was the subject of recent consideration by me when the defendant in this action sought leave to make an application to have the stay imposed in respect of Actions 3166 of 1984 lifted.  I refused leave to the defendant to bring that application.  I stated in my reasons delivered on 19 May 1998 as follows:

“As to paragraph (1) of the application, whereby the defendant seeks to have a stay of Action 3166 of 1984 lifted, and as to the proposed amendments whereby the defendant seeks to join an additional party to that action in order to obtain discovery from it, it is apparent from the copy affidavit which is Exhibit B to the affidavit sworn on 7 April 1998 that the plaintiff is seeking to re-litigate matters in relation to the University of Adelaide, his employment there and his superannuation entitlements all of which have been the subject of most careful analysis by Justice Perry in Judgment Number S6014 [The judgment delivered in this action leading to the declaration that the defendant was a vexatious litigant].  The defendant should not be permitted to pursue such applications because if he were permitted to do so it would undermine the order made by Justice Perry which, although it is the subject of appeal, is still in force, declaring the defendant to be a vexatious litigant.  He should not be permitted to litigate through the back door that which he is being prevented from litigating by virtue of a specific order staying a specific proceedings.  If the plaintiff is to regain status as an ordinary litigant, then, it seems to me he may only do so if he is able to successfully appeal against the decision of Justice Perry.

To the extent that the defendant says that he needs to pursue Action No 3166 of 1984 either with or without the additional party, because he will then obtain material relevant to the appeal, there is nothing in the material that he has put before the court on these leave applications to indicate that obtaining discovery against the defendants or proposed additional defendant in 3166 of 1984 would assist him on his appeal, other than by making such an assertion.

In my view the application for the lifting of the stay in Action No 3166 of 1984 and any proposed application for the joinder of an additional party in that action has no prospect of success and consequently leave to issue such an application either in its original form or in the form contemplated by proposed amendments to it, should be refused.”

The same approach applies to the application made by the defendant for a further extension of the time within which to set down his Full Court appeal, at least to the extent that the discovery that he wishes to obtain through Action No 3166 of 1984 may assist with his appeal.  The defendant has no prospect of re-opening Action No 3166 of 1984 and, consequently, any reliance he places on the possible re-opening of that action in support of his application for a further extension of time within which to set down the appeal must be disregarded.

The defendant has appealed from the orders made by Perry J on 20 February 1997 and 26 February 1997, whereby the defendant was declared a vexatious litigant and a stay of various actions was granted.  A number of notices of appeal have been filed.  More lately, a supplementary notice of appeal on 21 August 1997 and a further supplementary notice of appeal of 10 October 1997.  By application filed on 20 August 1997, the defendant sought an extension of time to set down the Full Court appeal.  On 17 October 1997 I made an order extending the time to 18 December 1997.  Prior to making that order I made the following remarks:-

“Ms De Palma, for the Attorney-General, has indicated that the Attorney does not oppose an extension of time as such.  I have heard her on the question of the period of extension.  Mr Burke has sought a period of two months from today within which to set down the appeal.  His difficulty is that he does not have the funds to prepare the books.  He has sought some accommodation from the Attorney in relation to pre-payment by the Attorney for his copy of the appeal books.  The Attorney is only prepared to pay the actual cost of photocopying or the fee allowed for the costs of a photocopy in the Supreme Court scale, whichever is the lesser sum, if he in due course agrees to a pre-payment.  Ms De Palma has made it clear that she is not presently so instructed but she may be able to obtain such instructions on the basis that the appellant accepts the payment as payment in full for the appeal transcript in accordance with SCR 95.09(7).  Mr Burke contends that he is entitled to additional payments.  He also contends that I should decide now whether or not the position taken by the Attorney is correct.  In my view, in the absence of the existence of a copy of the appeal books for tender to the Attorney-General the dispute does not arise and therefore I am asked to make a hypothetical determination which the Court has traditionally refused to do.  I see no reason for departing from that well-established practice.  Indeed, it is my view that not only as a matter of practice should I not proceed to such a determination but also the Court lacks the jurisdiction to do so.  I, therefore, refuse to entertain an application at this stage to determine the nature and extent of costs recoverable by the appellant pursuant to SCR 95.09(7).  I recognise that at the end of the day a lack of funds may prevent the appellant from pursuing the appeal and it is this factor which has convinced me to provide as much latitude as possible in relation to the time within which the appeal is to be set down.  Accordingly, I propose to extend the time for the setting down of the appeal for a period of two calendar months from today.”

In support of his application for an extension of time filed on 20 August 1997 (Document 41), the defendant filed an affidavit in which he said:-

“2..... I expect to be able to set the appeal down shortly after finalising a supplementary notice of appeal (an interim version of which is lodged in parallel and as support for the application also).

3...... However, while finalising it altogether, I will have to settle the index for the books and in view of my difficult financial situation, to seek the assistance of the plaintiff Attorney-General to actually prepare those appeal books, as well as supporting books of file documents as previously promised by the Crown Solicitor but not seen to be necessary, at first instance, by the learned justice.

4...... Also there will be the vital (for me) matter referred to at 5(3) below which will require preparation of affidavit material inter alia for a further (perhaps final) hearing before the October chamber justice.

5...... The reasons for the extension mainly existed at the FC call-over of 18.6.97 (and indeed earlier when the order was made in February):-

(1)... I do not wish to go to the Full Court not fully prepared, particularly now.

(2)... I had not in June been giving any attention to this appeal because of

(i).... the necessity to seek alternative accommodation, following the eviction order of the R/Tenancies Tribunal effective 7.3.97, and also employment following my registration as a ‘job-seeker’ on 26.2.97.

(ii)... serious financial problems arising from the fact of 12½ years with no income (till Newstart in March) and the fact of no access to credit, not unconnected with the ‘progress’ of my SC and Visitatorial claims and hardly helped either by the decision in the present action.  Outstanding debts include more than $5000 on credit card.

(iii).. my inability until a few weeks earlier to regain control of and access to my residual tangible property (household contents including legal books and files which I still am unable to store where I live), being one result of those financial problems - another being an inability in any case to pay for appeal books when settled.

5(3). But a further factor then became apparent viz the urgent need to prepare a summons for judicial review and associated documents (extensive affidavit, application for directions etc) in relation to the Visitatorial jurisdiction, and for a resulting chambers application in this Court.  This was in the context of a similar pending cut-off date under R.98.”

..................................... Section 39 of the Supreme Court Act deals with vexatious proceedings. Sub-section (3) of that section is as follows:-

“(3).. An order under this section remains in force (subject to variation by the court) –

(a).... if a period for the operation of the order is fixed – until the expiration of that period or the revocation of the order (whichever first occurs);

(b)... if no such period is fixed – until revocation of the order.”

I mention this sub-section because it was not clear to me that the defendant understood the distinction between an appeal and an application to vary or revoke the original order.  I pointed out to him during the course of his submissions that by way of appeal an appellant sought to persuade the Court that the original order should not have been made according to the facts and circumstances then before the Court at first instance.  This was to be contrasted with an application to vary or revoke the order which could only be based on fresh evidence or upon a change of heart on the part of the vexatious litigant or a combination of both.

It is possible, although it is not clear, that the defendant had put to me that there was no limit on the time within which he could appeal from the original order declaring him to be a vexatious litigant because the order could subsequently be varied or revoked. To the extent that such a submission has been put to me, I reject it. A distinction must be drawn between an appeal and a subsequent application to vary or revoke an order. With the former the Rules of Court relating to the institution and maintenance of appeals apply. The defendant during the course of his submissions made it very clear that it was his intention to pursue an appeal in the sense that he did not agree that the original order should have been made and he sought to have the same set aside by the appellate Court. That is not, in my view, an application which may be treated as one made pursuant to Section 39(3) of the Supreme Court Act for a variation or revocation of the original order.

It follows that the time limits within which to institute and maintain the appeal provided for in Rule 95 apply to the defendant’s appeal.  There is no dispute that the appeal was instituted within time.  The only matter at issue on this application is whether or not there should be a further extension of time within which to set down the appeal.  As mentioned earlier, that time had previously been extended to the 17 December 1997.  The provisions of SCR 95.11 apply.  It is common ground that the time for the setting down of the appeal has come and gone.  Sub-rule 3 of SCR 95.11 is as follows:-

“(3)(a)...... Where an appeal has not been set down within 6 months from its institution, or from when the appellant first became entitled to set it down, whichever is the latter, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired.

(b)............. In the event of an appeal lapsing pursuant to subrule (a) above, any respondent to that appeal shall bear his own costs of the appeal.”

When the extension was granted to 18 December 1997 it was an extension which was given prior to the expiry of the time for the setting down of the appeal and, consequently, on that occasion, the defendant did not have to demonstrate “special circumstances”.

On this occasion, the time for the setting down of the appeal had expired on 18 December 1997.  The order of 17 October 1997 extending the relevant time was as follows:-

“That the time for setting down the appellant’s appeal from the judgment of Justice Perry handed down on 20/2/97 be extended to and including 18/12/97.”

The application which is presently before me was not filed until 19 December 1997 and there was thus no further order for extension prior to the expiry of the time for the setting down of the appeal.  That being the case, on this application for an extension of time, the defendant must show special circumstances before being entitled to an extension.

It is plain, when the history of this appeal and the delays which have occurred in its prosecution are considered, that the defendant is of limited means and that he has not applied his financial resources to meeting the cost of the appeal books which must be lodged with the Court before the appeal is set down for hearing by the Full Court.  It was for that reason that I gave an extension of time for a period of two months on 17 October 1997.  However, I have little confidence that even if a further extension were granted, the defendant would have set the appeal down within the further time granted.  I accept that the main reason for his failure to date to have the appeal books prepared is his impecuniosity.  But as against that, the order appealed against was made in February of last year, some sixteen months ago.

There are other reasons why I have no confidence that the defendant will, from now on, expeditiously prosecute the appeal.  It will be seen from the reasons referred to earlier in these reasons concerning my refusal to grant leave to the defendant to make a variety of applications, that the defendant has a propensity to distract himself from the main issue and, so, instead of prosecuting this appeal diligently, he has gone off on a number of tangents without any useful purpose being served.

In coming to a conclusion as to whether or not a further extension should be granted, I have to consider the position of the plaintiff who is the respondent to the appeal.  A point must be reached when the Court says “enough is enough”.  I think that point has been reached in respect of the defendant’s failure to prosecute the appeal.  In my view, there are no circumstances, let alone special circumstances, which require the Court to exercise its discretion in favour of granting an extension of time.  I mention both ordinary circumstances and special circumstances because I have already referred to the requirement on the part of the defendant to show special circumstances as to why the extension of time should now be granted.  I have formed the view that there are no special circumstances, but even if I am wrong in the view that the defendant has to show “special circumstances”, I have reached the view that there are no circumstances, special or otherwise, which require the extension of time to be granted.  Thus, even if the only requirement were to show ordinary circumstances by reference to which the Court might exercise a discretion in favour of the defendant, no such circumstances have been demonstrated by the defendant.  Indeed, the indications are all to the contrary, namely, that even if granted an extension the appellant will not act expeditiously and prosecute the appeal by setting it down in the Full Court list.

For the above reasons I consider that the application by the defendant for an extension of time should be refused.  It follows that as the appeal has lapsed it should be withdrawn from the list of cases pending before the Full Court.

Ms de Palma, counsel for the Attorney-General, submitted to me that I should not extend the time for the setting down of the appeal because the appeal had no merit.  This is contrary to the position taken by the Attorney-General when the first application for an extension of time was before me.  However, written submissions were put by her in support of that aspect of the Attorney-General’s opposition to the defendant’s application for an extension of time.  I accept that it has been open to a respondent to an appeal to submit to the Court that an extension of time should not be granted where the appeal is of no merit.  However, the point was recently considered by the High Court in Jackamarra v Krakouer: (1988) 72 ALJR 819; (1988) 153 ALR 276. The High Court held that the merits of an appeal are not a relevant consideration where an application for an extension of time is being considered unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend the time. The Court made the point that the merits are examined at the end of the appeal process not during its course.

Whilst there may be some force in what Ms de Palma has put as to the merits of the defendant’s appeal, on the material before me (as opposed to that which might be before the appellate Court), I cannot conclude, even if I had jurisdiction to entertain such a submission, that the appeal was so lacking in merit that an extension of time should not be granted.

I mention the question of jurisdiction because SCR 95.12 enables the Court to give an order and direction incidental to the appeal but “not involving the decision of the proceeding”.  It may be, although I do not decide the point, that that rule would preclude the Court prior to the trial from making a decision that the appeal was without merit because it may be said to involve “the decision of the proceeding”.  To the extent that the defendant argued to the contrary, I am firmly of the view that I have jurisdiction to deal with this application for an extension of time within which to set down the appeal.  Contrary to the defendant’s submission, I do not consider that the refusal of the application (with the result that the appeal lapses or is struck out for want of prosecution) does not involve “the decision of the proceeding”.

In order to make it clear, I mention also that the use of the expression “given by the Court” in SCR 95.12 includes the Court as constituted by a Master, notwithstanding the commentary in Civil Procedure at paragraph 95.12.1.

For the above reasons the defendant’s application must be dismissed.  I will hear the parties as to costs.