Bellingers Variety Pty Ltd v Ok Bazaar Pty Ltd
[2002] TASSC 4
•7 February 2002
[2002] TASSC 4
CITATION: Bellingers Variety Pty Ltd & Anor v OK Bazaar Pty Ltd [2002] TASSC 4
PARTIES: BELLINGERS VARIETY PTY LTD (ACN 081 071 981)
BAZAARS TASMANIA PTY LTD (ACN 089 451 025)
v
OK BAZAAR PTY LTD (ACN 080 101 926)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: FCA 103/2001
DELIVERED ON: 7 February 2002
DELIVERED AT: Hobart
HEARING DATES: 6, 7 February 2002
JUDGMENT OF: Underwood J
[Edited version of reasons for judgment delivered orally]
CATCHWORDS:
Appeal and New Trial - Tasmania - Time for appeal - Extension of time - Whether it is just between the parties to extend time.
Supreme Court Civil Procedure Act 1932 (Tas), s46.
Aust Dig Appeal and New Trial [387]
REPRESENTATION:
Counsel:
Applicants: R E Hudson
Respondent: P W Tree
Solicitors:
Applicants: Butler McIntyre & Butler
Respondent: Dobson Mitchell & Allport
Judgment Number: [2002] TASSC 4
Number of Paragraphs: 21
Serial No 4/2002
File No FCA 103/2001
BELLINGERS VARIETY PTY LTD and BAZAARS TASMANIA PTY LTD
v OK BAZAAR PTY LTD
REASONS FOR JUDGMENT UNDERWOOD J
(DELIVERED ORALLY) 7 February 2002
This is an application to extend the time within which to file a notice of appeal to the Full Court from an order of a single judge. The order which is the subject of this application was made by the learned Chief Justice on 2 July 2001. It provides:
"1 Judgment be entered for the plaintiff in respect of the counterclaims of the first named and second named defendants, together with costs to be taxed.
2 The counterclaim of the first named and second named defendants be dismissed for want of prosecution.
3 The first named and second named defendants pay the plaintiff's costs of and incidental to the application to be taxed."
The respondent and the applicants were engaged in commerce by dealing in variety goods. Proceedings between the applicants and the respondent were commenced on 15 December 1999 by the filing of a writ. The respondent claimed that by reason of a memorandum of understanding between it and the applicants, and their subsequent dealings, the applicants owe the respondent almost $400,000. The statement of claim was met with a denial and a counterclaim based on alleged breaches of contract.
On 19 June 2000, almost exactly 12 months before the order which is the subject of this application was made, the respondent's solicitor requested the applicants' solicitor to deliver particulars. Three days after this request, some rudimentary particulars were delivered, but the respondent sought further particulars. On 12 July 2000, an order was made by the Master that those particulars be delivered within seven days.
From time to time between that date and 25 May 2001 when the respondent lodged the application to dismiss the counterclaim for want of prosecution (a period slightly in excess of 10 months), the applicants delivered some particulars but never fully complied with the order of the Master. On two occasions during this period, the last being 16 August 2000, the Master extended the time within which the applicants must deliver the particulars.
In late December 2000, the applicants changed their solicitors.
For present purposes, it suffices to find that prior to the counterclaim being struck out by order of the learned Chief Justice, the applicants did not furnish the outstanding particulars as they were required to do. The omissions and failures of the applicants in this respect were deposed to in an affidavit sworn by the respondent's solicitor, Mr Walker. This affidavit was read on the strike out application determined by the learned Chief Justice.
Mrs Bellinger, a director of the applicants, swore three affidavits which were read on the hearing of this application to extend time. Mrs Bellinger was cross-examined on these affidavits. Principally, the cross-examination was directed to the applicants' failure to furnish particulars. I have little confidence in the evidence of Mrs Bellinger, for in several respects it was in conflict with documentary evidence. When these conflicts were pointed out to her, she became evasive and appeared to invent unlikely explanations for the conflict. However, it is not necessary to give elaborate reasons for the poor view that I formed of Mrs Bellinger's credit because nothing really turns upon it in the determination of this application. The plain fact is that there was a continual, unexplained failure over a period of about 10 months to deliver all the particulars requested.
When the strike out application came on for hearing before the learned Chief Justice, the applicants were represented by Mr Barker of counsel. In what seems to me to have been rather oblique terms, Mr Barker asked for an adjournment. In making that application he told the learned Chief Justice that he could not be confident that even after an adjournment the outstanding particulars would be supplied.
The application for an adjournment was opposed. The learned Chief Justice disallowed it. Mr Barker then sought, and was given, leave to withdraw. No explanation was then given for the reason for his withdrawal.
Counsel for the respondent then read Mr Walker's affidavit and went through its contents with the learned Chief Justice. He followed that with submissions as to the law and sought the orders that were ultimately made.
The learned Chief Justice gave brief ex tempore reasons for allowing the application, dismissing the counterclaim and ordering entry of judgment in favour of the respondent. In essence, his Honour's reasons were that there had been a significant and inexcusable delay which made it unjust that the counterclaim should proceed. His Honour drew a distinction between a case in which the respondent is a defendant and one in which the respondent is a plaintiff or counterclaimant.
This application was filed on 13 December 2001, approximately six months out of time. However, the respondent had been given notice of the applicants' intention to make this application about a month before when it was served with an affidavit by Mrs Bellinger. This affidavit was filed to resist an order sought by the respondent for summary judgment on the claim. At the end of the affidavit, the deponent stated that she was intending to apply to extend the time for filing a notice of appeal from the order made on 2 July 2001. I was informed, without opposition from the bar table, that during the period of a month between the filing and serving of that affidavit and the making of this application, there were some mediation conferences.
The jurisdiction to make the order sought on this application is to be found in the Rules of Court, r52. The rule imposes no fetter on the exercise of the discretion, but such discretion must be exercised judicially. See Norbisv Norbis (1986) 151 CLR 513 and Kosta Khavounitis v NRMAInsurance Limited [1999] TASSC 2. I hold that the issue before me is whether it is just between the parties to extend the time within which an appeal may be brought. Of course, as is almost always the case on applications such as this, relevant matters include the length of delay, the reason for it and any prejudice that the respondent may have suffered, or may be likely to suffer, by reason of delay.
With respect to the issue of prejudice, there was some evidence before me from Mrs Bellinger tending to show that the applicants' capacity to meet any judgment in favour of the respondent may have weakened over the period of delay. However, the evidence was very speculative and uncertain. Further, there is no reason to suppose that had the applicants lodged an appeal within time, any deterioration in the applicants' financial position would not have occurred, nor that the respondent would have achieved a favourable conclusion to the litigation by the time the application to extend was lodged. The period of delay is six months and had the applicants filed their notices of appeal in timely manner, the prosecution of the respondent's action would have been delayed while the appeal was finalised in any event.
Mr Tree submitted that another aspect of prejudice that arises by reason of the delay is that the making of the order sought will inhibit the respondent's pending application for summary judgment. The inhibition arises out of the fact that the counterclaim clearly raises a set off which, of course, is an equitable defence. Its existence would be more than likely to prevent the making of an order in favour of the respondent for summary judgment. Further, as Mr Tree correctly submitted, even though the equitable defence does not presently exist by reason of the order of the learned Chief Justice, a pending appeal against that order would have the same effect on a summary judgment application. However, the respondent did not make an application for summary judgment until 12 October 2001, and for that reason a period of delay and consequential prejudice is minimal.
The unchallenged evidence of Mrs Bellinger was that the applicants' solicitors, who had carriage of the action after December 2000, did not make her or the applicants aware of either the application to strike out the counterclaim or the impugned order until November 2001. I accept her evidence in this respect. I find that had the applicants been made aware of the application to strike out, it would have been opposed by properly instructed counsel. I also find that if the orders sought had been made over opposition, an appeal would have been lodged within the time prescribed by the Rules of Court. After she became aware of the making of the order, Mrs Bellinger and, of course, the applicants, acted promptly and with due despatch.
Mr Tree submitted that I should not rely upon Mrs Bellinger's evidence in this respect as the applicants' then solicitors gave no evidence to support it. I do not accept this submission because Mrs Bellenger's evidence was not challenged in this respect (understandably as Mr Tree no doubt had no material upon which to properly mount a challenge) and, in any event, those solicitors are defendants to litigation launched against them by the applicants with respect to this very matter.
It was also pressed upon me that I should dismiss the application because the applicants could commence proceedings afresh. Mr Hudson, who appeared for the applicants, contended that the order of the learned Chief Justice made the issues in the counterclaim res judicata and all further proceedings on those issues were barred. Some time was spent investigating interesting propositions of law in this respect, but all that seems to me to be beside the point. The applicants might have alternative avenues open to them to prosecute the counterclaim, but it could not be suggested that because of the existence of them this application was an exercise in futility. Even if other avenues are open, the applicants are entitled to assert their appellate rights if it is just as between the parties that the time to lodge an appeal should be extended.
Mr Hudson took me on a rather convoluted tour of the applicants' proposed grounds of appeal should the order sought be made. There is no need to deal with them in detail, especially as they are more than a little hard to make out. The question is whether the applicants have an arguable case that the learned Chief Justice erred in making the order. In answering this question, it must not be overlooked that the order was made in the exercise of a judicial discretion and therefore appellate review is subject to the restraints imposed by the Supreme Court Civil Procedure Act 1932, s45. Having said that, I am clearly of the view that the applicants do have an arguable case. As appears from the facts that I have already set out, the period of delay in the delivery of the ordered particulars is less that a year in total. During that time, some of the particulars were delivered from time to time and the time for delivery was judicially extended several times. No self-executing interlocutory order was made during that 10 month period, and no specific prejudice to the respondent by reason of the delay was demonstrated. In all these circumstances, there is an arguable case that general error occurred in the exercise of the discretion.
Putting all those matters together, I am satisfied to the requisite degree that it is just as between the parties to grant the application. I will hear the parties as to terms and directions to ensure that the appeal has a speedy disposition.
After hearing counsel, the following orders were made:
(1)The time for filing and serving a notice of appeal against the order made on 2 July 2001, be extended until 14 February 2002.
(2)The applicants leave their list of documents for inclusion in the appeal books with the Principal Registrar on or before 15 February 2002.
(3)The applicants serve the notice of appointment to settle the contents of the appeal book on the respondent within 2 days of their receipt of it from the Registrar.
(4)Liberty to apply.
(5)The applicants pay the respondent's taxed costs of this application. Certify for counsel.
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