Dagenham Nominees Pty Ltd v Shanks No. Scciv-03-46

[2003] SASC 139

DAGENHAM NOMINEES PTY LTD v SHANKS

[2003] SASC 139

Civil

1. BESANKO J         I have before me two applications in relation to a purported appeal to the Full Court of this Court.  The appellant, Dagenham Nominees Pty Ltd, was the defendant to proceedings in the District Court of Adelaide. The respondent, Mr Gary Shanks, was the plaintiff, and he was successful in obtaining judgment against the appellant for an amount of approximately $75,000 including interest.  It appears that the District Court Judge entered judgment for the principal sum on 19 December 2002 and made an award of interest on 20 December 2002.

2. The appellant’s Notice of Appeal is dated 10 January 2003. Rule 95.02 of the Supreme Court Rules 1987 relevantly provides:

   “Unless any enactment otherwise provides:

   (a)an appeal as of right must be instituted within fourteen days after the decision, judgment, order or award appealed from, or within such other time as the Court may fix;”

3. It is not disputed that the Notice of Appeal was not filed within a period of fourteen days after the judgment appealed from. Furthermore, the Notice of Appeal was not served until about 5 February 2003, and therefore well outside the fourteen day period.

4. The respondent issued an application dated 9 April 2003 seeking to have the Notice of Appeal struck out as incompetent. The ground upon which the application was based is that the Notice of Appeal was not filed and served within the fourteen day period.  Rule 95.08 of the Rules provides:

   “(1)A respondent may make an application at any time to the Full Court or a Judge for an order dismissing an appeal as incompetent.

   (2)Upon the hearing of the application, the burden of establishing the competency of the appeal is on the appellant.”

5. I have the power as a single Judge to dismiss an appeal on the ground that it is incompetent. An appeal which is filed and served outside the fourteen day period may be dismissed as incompetent. In this case, unless an extension of time is granted, the appeal should be dismissed as incompetent.

6. The appellant filed an affidavit in response to the respondent’s application. The affidavit is an affidavit of the appellant’s solicitor and it seeks to explain why the Notice of Appeal was not filed and served within the fourteen day period. During the hearing of the respondent’s application, the appellant made an oral application for an extension of time within which to institute the appeal pursuant to r95.02.

7. Clearly, the appellant’s application for an extension of time should be dealt with before the respondent’s application for an order dismissing the appeal.

8. The respondent raised two matters in relation to the appellant’s application for an extension of time. First, he submitted that I may not have the power to make an order extending the time for the institution of the appeal. I will return to this submission in a moment. Secondly, he submitted that the appellant had not adequately explained the reasons for the delay, or more precisely, on the evidence I should not exercise my discretion in favour of the appellant. He criticised the explanation set out in the affidavit of the appellant’s solicitor. I think there is substance in some of the respondent’s criticisms of the affidavit.  Counsel for the respondent also submitted that his client would be prejudiced by an extension of time because the appellant would then seek a stay of execution and if granted, his client would be unable to recover the judgment sum. I was told that there is an application for a stay of execution pending in the District Court.  I think the question of a stay of execution is a separate matter and is not a matter to be considered on this application.

9. Despite the force of some of the criticisms of the affidavit of the appellant’s solicitor, I would be inclined to make an order extending time if I have the power to do so.

10. There is much to be said for the view that a single Judge of this Court who has the power to dismiss an appeal as being incompetent on the ground (inter alia) that it was instituted outside the prescribed period should also have the power to extend time, particularly if the application for an extension of time raises factual issues.

11. However, I have reached the conclusion that I do not have the power to extend time. I have reached this conclusion for three reasons. First, the provisional view of the Full Court in Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd and Ors [2001] SASC 373 was that “Court” in r95.02 means the Full Court. Secondly, the right of appeal is a right of appeal to the Full Court, not a single Judge of the Court. Absent a particular power given by a Rule of Court, it is the Full Court and not a single Judge which has power or jurisdiction with respect to an appeal or purported appeal. I think ‘Court’ in r95.02 means Full Court, and this conclusion is not altered by the definition of Court in r5.1. Thirdly, r95.02 does not, like other Rules, (eg., r95.08) refer to the Court “or a Judge”.

12. The orders I propose to make are that the appellant’s application to me should be dismissed. I would be prepared to grant leave to the appellant to amend its Notice of Appeal to endorse thereon its application for an extension of time (Fraser v The National Australia Bank [2000] SASC 372). The respondent’s application to have the appeal dismissed as incompetent should be made to the Full Court. I will hear from the parties as to the precise orders that should be made.