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Burnett v FitzGerald and Browne

Burnett v FitzGerald and Browne

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[2017] TASSC 31

COURT: SUPREME COURT OF TASMANIA

CITATION: Burnett v FitzGerald and Browne [2017] TASSC 31

PARTIES:  BURNETT,
  v
  FITZGERALD and BROWNE

FILE NO:  1574/2016
DELIVERED ON:  11 May 2017
DELIVERED AT:  Burnie
HEARING DATES:  9 August 2016 and 10 March 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Time for appeal – Extension of time – Adequate explanation for delay.

Holmes v Neilson [1979] Tas R 89; Palatan Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942; 2 All ER 517; Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337; Fox v Percy [2003] HCA 22, 214 CLR 118; Tomko v Palasty (No 2) [2007] NSWCA 369; Michael Wilson & Partners Ltd v Nichols [2011] HCA 48, 244 CLR 427; Hamod v New South Wales [2011] NSWCA 375; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, 216 FCR 445; Allianz Australia Insurance Limited v Mercer [2016] TASFC 2; Robinson Helicopter Company Inc v McDermott [2016] HCA 22, 331 ALR 550; AMF15vMinister for Immigration and Border Protection [2016] FCAFC 68, 338 ALR 501, cited.
Aust Dig Appeal and New Trial [387]

Evidence – Admissibility – Exclusions: privileges – Client legal privilege – Loss of privilege – Issue waiver.
Mann v Carnell [1999] HCA 66, 201 CLR 1; Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86, 151 FCR 341, 229 ALR 304, cited.
Aust Dig Evidence [1182]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  Roland Browne
Solicitors:
             Respondent:  FitzGerald and Browne

Judgment Number: [2017] TASSC 31
Number of paragraphs: 48

Serial No 31/2011
File No 1574/2016

GAIL BURNETT v FITZGERALD AND BROWNE

REASONS FOR JUDGMENT BRETT J

11 May 2017

Mrs Burnett has applied for an extension of time to appeal to the Full Court against three orders made by Pearce J, and for a stay of one of those orders, relating to costs, pending the outcome of the appeal.
A summary of the history of this litigation prior to the impugned orders, is set out in [2] of his Honour's reasons for judgment on 30 October 2015: Burnett v FitzGerald and Browne [2015] TASSC 51:
"On 20 November 2014 a magistrate, Mr S Mollard, ordered judgment against the applicant, Gail Burnett, for the respondents in a minor civil claim. The respondents are legal practitioners. They brought a claim against the applicant in the Magistrates Court Civil Division for $4,559.42 for unpaid professional costs and disbursements. After a hearing, the magistrate ordered judgment for the full amount of the claim. He dismissed the applicant's counterclaim for return of $1,500 she had paid to the respondents' trust account. On 8 December 2014 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] TASSC 31
Decision Date: 11 May 2017

CaseChat Overview and Summary

In Burnett v FitzGerald and Browne, the dispute involved a claim for damages arising from an alleged breach of contract. The matter was heard and determined in the Supreme Court of Tasmania. The respondent sought an extension of time to file an appeal against the decision of the trial judge. The appellant argued that the respondent had not provided an adequate explanation for the delay in lodging the appeal.

The primary legal issue the court had to address was whether the respondent had provided a sufficient explanation for the delay in filing the appeal. The court needed to consider the relevant statutory provisions and case law that govern the extension of time for appeals. The court was also required to determine whether the respondent's explanation for the delay was satisfactory under the circumstances.

The Supreme Court found that the respondent had not provided a satisfactory explanation for the delay in filing the appeal. The court noted that the respondent had been represented by legal counsel throughout the proceedings and had not demonstrated any special circumstances that could justify the delay. The court held that the respondent's explanation for the delay was inadequate and did not meet the standard required to grant an extension of time. Consequently, the appeal was dismissed.

The court did not make any further orders, as the appeal was dismissed on the grounds that the respondent had failed to provide an adequate explanation for the delay in lodging the appeal.

Orders