Edwards & Anor v Olsen & Ors No. Scgrg-86-2556

EDWARDS and ANOR v OLSEN and ORS
[2000] SASC 360

Civil

1................ PERRY J. (ex tempore) In this matter, on Thursday 28 September 2000 I completed the taking of evidence and adjourned the matter for written submissions to be prepared.

Initially, I directed that written submissions from both parties be exchanged between the parties and delivered to my Associate on or before 19 October 2000. At the same time, I directed that oral submissions commence on Tuesday 24 October 2000.
Subsequently, Mr Edwards applied for an extension of time for the delivery of written submissions, an application which, if granted, would necessarily have also dislodged the date set for the commencement of oral submissions. He made that application by written notice dated 16 October 2000 supported by his affidavit sworn on the same day.
The gist of the grounds put forward by him in support of his application was that he simply did not have time to prepare his written submissions before the date which I had set for their delivery. He sought an extension of time to 23 November 2000.
I heard argument on his application from both parties, and gave an extempore ruling on 19 October 2000. My formal ruling was reduced to a fiat which reads:
“1..... I extend the time-
(a).... for lodgement by the plaintiffs and service on the defendants of the written submissions to Monday 30 October 2000; and
(b) for lodgement and service by the defendants of their written submissions by Wednesday 25 October 2000.
2...... I will commence the hearing of oral submissions directed to the written submissions on Thursday 2 November 2000 at 9.45 am.”
On 23 October 2000 Mr Edwards and his co-plaintiff, Deep Sea Ark, lodged a purported notice of appeal to the Full Court against my ruling of 19 October 2000. In the purported notice of appeal, he set out some fourteen grounds. The grounds embody a series of complaints as to suggested errors on my part in reaching the ruling and in giving the direction. In effect, he complains that I did not extend the time for submissions by a long enough period.
In response to the purported notice of appeal the defendants applied by application dated 24 October 2000 for an order that the plaintiffs’ notice of appeal be struck out. This was supported by an affidavit of Mr Penhale which recites the history of the ruling given by me as to the lodgement of written submissions. Amongst other things, he takes the point that, to quote his affidavit:
“Since the orders .... being appealed against are in the nature of interlocutory orders the plaintiffs are required ... to seek leave to appeal to the Full Court. In the absence of such an application the appeal is incompetent and should be struck out.”
Apparently that point registered on Mr Edwards. It precipitated a further application by Mr Edwards and his company, purporting to be an application for leave to appeal.
Clearly, if the ruling and direction made by me constitutes any sort of order, it is interlocutory in nature and leave would be required under s 50 of the Supreme Court Act 1935.
In the circumstances, I am prepared to treat the substantive application as one for leave to appeal, and the purported notice of appeal dated 23 October 2000 as an indication of the terms in which a notice of appeal would be advanced if leave was to be granted.
Notwithstanding the concession in Mr Penhale’s affidavit that my orders are in the nature of interlocutory orders, I doubt that to be the case. Rather, I am of the view that the ruling and direction given by me as to the lodgement of written submissions and the fixing of the date for oral submissions, as subsequently varied, do not operate inter partes. They may properly be characterised as administrative directions given during the course of the trial and do not answer the description of an appealable interlocutory order.
Indeed, notwithstanding Mr Penhale’s affidavit, Mr Bell of counsel for the defendants now advances a submission to the same effect as the view which I have just expressed.
The fact that I reduced the direction to a fiat does not cause me to alter that conclusion. For clarity, I have expressed many of the directions given during the course of the hearing as to procedural matters relating to the course of the trial as fiats.
The view which I have reached as to the character of the ruling and directions given by me is consistent with a number of authorities which, for convenience, I note on transcript. They are Landsal Pty Ltd (In Liquidation) v REI Building Society;[1] In re Andrew Dunn and the Morning Bulletin Ltd;[2] Legal Practitioners Complaints Committee v A Practitioner;[3] Duke Group Ltd (In Liquidation) v Arthur Young Registered and Anor (No 2);[4] and REMM Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd.[5]
[1] (1993) 113 ALR 643 at 653.
[2] [1932] St R Q 1.
[3] (1987) 46 SASR 126 per King CJ at 127.
[4] (1990) 54 SASR 511 per Perry J at 512.
[5] (1992) 57 SASR 180.
It was in the Duke Group Ltd case that as trial judge I cited dicta by King CJ from Legal Practitioners Complaints Committee v A Practitioner (supra) in the course of which he said:[6]
“A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.”
[6] (1987) 46 SASR 126 per King CJ at 127.
The authorities, and in particular the dicta of King CJ which I have just quoted, leave me in no doubt as to the correctness of the view which I have taken as to the character of the ruling and direction in question.
It follows that, in my opinion, not only the purported notice of appeal but also the purported notice of application for leave to appeal should be struck out as incompetent.
If I was to be wrong in the opinion which I have reached as to the nature of my ruling and direction as to the delivery of written submissions and as to the fixing of the date upon which oral argument is to commence, I would nonetheless refuse leave to appeal.
The Full Court has said again and again, in many contexts, both criminal and civil, that it does not readily entertain an appeal as to procedural matters affecting the course of the trial while the trial is in progress, or for that matter before a trial has begun, if that should be the case. The parties cannot be allowed to obstruct the orderly and prompt disposal of proceedings by appeals of that kind.
In my opinion, in any event, none of the grounds set out in the purported notice of appeal have any substance and there is no reasonable prospect of an appeal being successful, even if it was to be competent.
I note the contention of the defendants in the affidavit of Mr Penhale that the purported appeal is a stalling tactic by Mr Edwards. That may well be the case. But I do not decide the matter on that footing. I have regard rather to the legal questions associated with the competence of the appeal and the merits of the purported appeal.
There are, however, two further matters to which I must direct attention.
One is that Mr Edwards has lost some time in the preparation of written submissions by bringing the purported notice of appeal and subsequently the application for leave to appeal. If the matter rested there I would probably extend the dates for the lodgement of written submissions and the commencement of oral argument by a few days to compensate for that.
The other is that this morning Mr Edwards informed me that he was suffering from a medical condition which was interfering with his ability to appear in court. He supported that assertion by a medical report of Dr Richard Grove dated 25 October 2000. Dr Grove’s report suggests that there are signs and symptoms of a reactive depression. He states:
“He (Mr Edwards) at the moment is psychologically and physically unable to do justice to himself when appearing in court.”
Dr Grove has prescribed a course of antidepressants with the intention that they be taken at least until 6 December.
Dr Grove further states:
“It would be appreciated if he could have the proceedings prolonged (sic) at least two to three [weeks] as this medication prescribed does take time to become effective.”
If the questions of the competency of the notice of appeal and application for leave to appeal were questions as to which there was any real doubt, I would have stood the whole matter over from this morning in view of the terms of that medical report.
However, the questions associated with the legitimacy of both the notice of appeal and the application for leave to appeal do not admit of any doubt. In those circumstances, while I invited Mr Edwards to say what he wished in response to the application to strike out the notice of appeal, after I had drawn his attention to the procedural difficulties which he faced, I feel that it is proper to deal with that aspect of the matter at this stage.
Furthermore, the question of the competency of the purported appeal and application for leave to appeal is separate and distinct from the question of Mr Edwards’ ability satisfactorily to present legal argument in court.
It is better that if the appeal is clearly incompetent, the Court should say so now.
For the reasons which I have given, the application for leave to appeal and the purported notice of appeal are both struck out as incompetent.
This means that the timeframe which I have set for the delivery of submissions and for the commencement of oral submissions remains in accordance with the directions which I have so far given, and to which I have referred.

I will, however, hear Mr Edwards separately on the question whether, in view of the medical report, I should review the timeframe.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1993) 113 ALR 643 at 653.
[1932] St R Q 1.
(1987) 46 SASR 126 per King CJ at 127.
(1990) 54 SASR 511 per Perry J at 512.
(1992) 57 SASR 180.
(1987) 46 SASR 126 per King CJ at 127.

[2000] SASC 360

27 October 2000