CARLIN & CARLIN v MLADENOVIC & JURISEVIC
[2002] SASC 90Full Court Prior, Nyland and Gray JJ
Prior J I agree with the orders proposed by Gray J for the reasons he has prepared.
Nyland J I agree that the appeal should be allowed for the reasons given by Gray J. I agree with the orders that he has proposed.
Gray J This is an appeal against a decision of a judge of this court refusing an application for an extension of time within which to set an appeal down for hearing.
Introduction
The learned trial judge (“the trial judge”) resolved a dispute between two neighbouring property owners over an encroachment to land. He made an order transferring land in favour of the encroaching owner, the defendants to the proceedings and the respondents to this appeal. The adjacent owner appealed from that decision. This was an appeal as of right. However the appeal was not set down within the time prescribed by the rules of court. The trial judge refused an application to extend time within which to set down the appeal for hearing (“the application to extend time”). The adjacent owner has appealed to this court against that order.
The application to extend time was made pursuant to Supreme Court Rule 95.11 (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 limited by this Rule has expired, or where in special circumstances only, such time has been extended after the time limited after the time limited by this rule has expired.”
Alternatively reliance was placed on section 48 of the Limitation of Actions Act 1936 (SA):
“(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for -
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c) doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that -
(a) the court has jurisdiction to entertain; or
(b) the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not -
(a) apply to criminal proceedings; or
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied -
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the…
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- Carlin v Mladenovic [2002] SASC 90
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- [2002] SASC 90
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CaseChat Overview and Summary
The court considered whether the delay in setting down the appeal was due to circumstances beyond the control of the appellants. It was established that the delay was due to the negligence of the appellants' solicitor, and the appellants themselves were blameless. The court also evaluated whether the appellants satisfied the onus under section 48(1) of the Limitation of Actions Act to enable the grant of an extension of time. The court determined that the prejudice to the respondents could be remedied by an order for costs.
In conclusion, the court found that the appellants had demonstrated special circumstances justifying an extension of time. The court held that the Limitation of Actions Act operates within the context of the rules of court and can overcome the harsh consequences of a rule of court. The appeal was allowed, and the time to set down the appeal was extended by seven days from the date of the decision. The appellants were ordered to pay the respondents' costs of the appeal and any costs thrown away. If the appeal was set down within the extended time, it could be heard in the April 2002 sitting of the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The solicitor’s conduct and the blamelessness of the appellants were relevant factors to be considered when deciding whether special circumstances existed within the terms of Supreme Court Rule 95.11. They were also relevant to the application of section 48 of the Limitation of Actions Act.[10] For these reasons the trial judge’s exercise of discretion miscarried. It is necessary for this court to reconsider the exercise of discretion.[10] This is not an appeal devoid of meritReconsideration The solicitor for the appellants has accepted responsibility for the delay in setting down the appeal. In this matter the delay was not intentional or contumelious. The solicitor’s affidavit establishes that there was a blunder. There was no suggestion that the appellants were aware of the delay. The delay was not a matter for which they were personally responsible. They were blameless. The fault lay solely with their solicitor “in circumstances with which the litigant should not be saddled”[11]. [11] Jackamarrav Krakouer (1998) per Kirby J at [66] The prejudice to the appellants namely being precluded from exercising their right of appeal is self evident. There are arguable grounds to be advanced on appeal. The prejudice to the respondents is not so clear. It is true that they have to face an appeal that had lapsed. However the building continues to encroach as it has for 26 years. The status quo has been maintained. The prejudice to the respondents can be addressed by an order for costs. Section 48 of the Limitation of Actions Act is not to be read down by the terms of Rule 95.11. The section operates within the context of the rules of court. As Lander J pointed out in Calvaresi v Rota Farma Pty Ltd v Lawson and Lawson[12] section 48 can operate to overcome the unfair and unjust consequences of the harsh application of a rule of court. In the circumstances the “blameless” appellants should be granted an extension of time. Any prejudice to the respondent can be adequately remedied.[12] (1995-96) 184 LSJS 147Conclusion The appellants have made out special circumstances which justify an extension of time pursuant to Rule 95.11. Additionally they have satisfied the onus under section 48(1) of the Limitation of Actions Act to enable the grant of an extension of time. During the appeal, an issue arose as to the possibility of prejudice to the respondents by exposure to the expense of an appeal. The appellants submitted that the costs of the appeal following a grant of an extension of time should abide the event of that appeal. It was submitted that as the respondents would be properly protected by an order that they recover costs thrown away as a result of the failure to set down the appeal. I accept this submission. The appeal should be allowed and time to set down the appeal should be extended by seven days from this date. The appellant must pay the respondent’s costs of this appeal and any costs thrown away. If the appeal is set down within the extended time the appeal can be heard in the April 2002 sitting of this Court.