Citicorp Aust Ltd & Ors v Cirillo & Anor (No 3) No. Scciv-85-1481

[2001] SASC 92

[2001] SASC 92
CIRILLO & ANOR  v  CITICORP AUSTRALIA LTD & ORS (NO. 3)

1. LANDER J.           This is an application by the first defendant for an extension of time within which to file and serve a notice of appeal from orders made by me made on 2 April 2001. On that date I made two decisions. The first was to refuse the first defendant’s application to adjourn the trial for a period of 12 weeks to enable the first defendant to brief new counsel.  After making that decision and, upon the first defendant failing to present evidence in respect of the matter then before the court, I dismissed the first defendant’s claim for damages based upon an undertaking given by the plaintiff in support of the obtaining of an injunction.

2. On 17 April, the first defendant applied to me for leave to appeal, pursuant to rule 94 of the Supreme Court Rules. The application was heard ex parte, pursuant to rule 94.01, and after hearing counsel for the first defendant, I concluded that leave to appeal from my refusal to grant an adjournment should be refused. I also reached the conclusion that leave to appeal from my decision dismissing the second defendant’s claim was not required as an appeal lay of right. In the alternative I concluded that if I was wrong about an appeal lying as of right from my second decision, I would refuse leave. I, therefore, dismissed the application for leave to appeal.

3. The first defendant has, in accordance with my reasons, now filed and served a notice of appeal. That was done four days after my refusal to give leave.  The first defendant seeks to appeal against my dismissal of the second defendant’s claim for damages and, I think, at the same time also seeks to appeal from my failure to grant an adjournment.

4. In a sense, the first defendant has not discriminated between the two orders that I made on 2 April, but that may be because the second order is dependent upon the correctness of the first. In any event, the first defendant now asserts that an appeal lies of right in respect of that second order and, in the alternative, the first defendant seeks leave to appeal. That procedure seems to be in conformity with the decision that I gave on 30 April.

5. This is an application then to extend the time within which to appeal until the filing of the notice of appeal on 4 May.

6. Mr McNamara, counsel for the plaintiff, says that I should do one of two things.  Either I should dismiss the application or alternatively, I should refer the application to the Full Court for the Full Court’s consideration. I shall deal with the second first.

7. In relation to that submission, Mr McNamara says that an extension of time within which to appeal should not be granted unless it is likely that the appeal will be successful. In those circumstances, he says the Full Court should determine whether or not leave should be granted after hearing, as it were, the appeal.  It is right that an extension of time depends, to a certain extent, upon the likely success of the appeal. It seems to me to be, however, a cumbersome procedure to require the Full Court to consider an extension of time in circumstances where, if the appeal were unsuccessful, the extension will be refused and, if the appeal were successful, the extension would be granted. It would be better if the appellant has an appeal as of right, subject to an order for an extension of time, that the appellant be allowed to argue that appeal in the Full Court unencumbered by procedural hurdles.

8. With respect to the first submission, Mr McNamara said that I could be confident that if I granted an extension of time within which to appeal, the plaintiff would seek leave to appeal from my decision.  Alternatively, the plaintiff would apply to the Full Court under rule 95 to set aside my decision granting an extension of time within which to appeal.

9. If the plaintiff takes that course, which would, of course, be open to the plaintiff, that would mean that the Full Court would have before it an application for leave to appeal in respect of my refusal to grant an adjournment; an application for leave to appeal from my order dismissing the first defendant’s claim; a claim of appeal as of right from my order dismissing the plaintiff’s claim; an application for leave to appeal from an order made by me extending the time within which the first defendant has to file and serve notice of appeal; and, in the alternative, an application under rule 95 to set aside the same order.  If all of that takes place, it seems to me, that the appeal will be wallowing in a procedural morass.  But, that is for the parties and, in particular, the plaintiff.

10. The real issue on appeal will be whether I was right to refuse an adjournment on 2 April, and if it was right to refuse that adjournment whether, in those circumstances, I was also right to strike out the first defendant’s claim. The first defendant should, subject to the procedures of the court which require leave in relation to interlocutory decisions, be allowed to test my decisions in the Full Court.

11. In those circumstances, it seems to me that I should extend the time within which the first defendant has to file and serve the notice of appeal nunc pro tunc to 4 May 2001.

12. Mr McNamara, further, argues that I should not extend time because I should reach the conclusion that the appeal has little prospect of success. It is true, of course, that it must be my view that the appeal will be dismissed, otherwise I would not have made the orders on 2 April in the first place. It is also true that I concluded on 30 April that an application for leave to appeal should be refused because the appeal had little merit and had slim prospects of success. However, if I were to decide this application upon the footing that my decision was correct and an extension of time, therefore, should not be allowed, in a sense I would be hearing an appeal from myself.  That would be unsatisfactory.

13. In this case the question is whether my decisions were right and, if the first defendant has a right of appeal, the first defendant should be allowed to test those decisions in the Full Court.

14. For those reasons, I grant the first defendant an extension of time within which to file and serve the notice of appeal nunc pro tunc to 4 May.

15. In relation to costs I will make an order that the costs be the costs of the appeal.