EIBHLIN Margaret Campbell as administrator of the estate of Colin Charles Campbell (Dec) v RGC Mineral Sands Ltd
[2001] WASCA 170
•1 JUNE 2001
EIBHLIN MARGARET CAMPBELL as administrator of the estate of COLIN CHARLES CAMPBELL (DEC) -v- RGC MINERAL SANDS LTD [2001] WASCA 170
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 170 | |
| Case No: | FUL:33/2001 | 30 MAY 2001 | |
| Coram: | MASTER BREDMEYER | 1/06/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | EIBHLIN MARGARET CAMPBELL as administrator of the estate of COLIN CHARLES CAMPBELL (DEC) RGC MINERAL SANDS LTD |
Catchwords: | Appeal Cross-appeal Application for an extension of time to lodge cross-appeal |
Legislation: | Rules of the Supreme Court 1971, O 3 r 5, O 63 r 9(1) and (4) |
Case References: | Nil Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant (Plaintiff)
AND
RGC MINERAL SANDS LTD
Respondent (Defendant)
Catchwords:
Appeal - Cross-appeal - Application for an extension of time to lodge cross-appeal
Legislation:
Rules of the Supreme Court 1971, O 3 r 5, O 63 r 9(1) and (4)
Result:
Application allowed
(Page 2)
Representation:
Counsel:
Appellant (Plaintiff) : Mr I K Bellamy
Respondent (Defendant) : Mr P P McCann
Solicitors:
Appellant (Plaintiff) : Solomon Brothers
Respondent (Defendant) : Civitella Smith
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
(Page 3)
1 MASTER BREDMEYER: This is an application by the respondent for an extension of time within which to file and serve a cross-appeal. The application is made under O 63 r 9(4) and O 3 r 5.
2 At the commencement of the hearing a doubt was raised as to my jurisdiction to hear this application and I offered to ask the Judge in charge of the Civil List if he would delegate the matter to me under O 60 r 1(1BA). I have now decided against that course, as not necessary. Order 63 r 9(1) permits a respondent to give notice of a cross-appeal if he desires to contend on the appeal that the decision of the court should be varied. Rule 9(4) provides a time limit and I quote:
"(4) A notice given by a respondent under this Rule must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent and must be served within 21 days after the service of the notice of appeal on the respondent."
3 There is no power in that sub-rule to grant an extension. I contrast that with O 63 r 4 which provides that a notice of motion by way of appeal must be served and filed within 21 days from the date of the judgment "or within such extended time as the Full Court or a Judge may allow". Order 63 r 18 states that the powers conferred on a Judge inter alia by r 4(1) may be exercised by a Master. Without that delegation, a Master would not have power to exercise the power to grant an extension conferred expressly on the Full Court or a Judge under r 4. Order 63 r 9(4) does not confer any power to grant an extension. So I consider O 3 r 5, which contains a general power to grant extensions, applies. I quote from part of that rule:
"5(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules or by any judgment, order, or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period."
- Under O 06 r 1(1) a Master has power to exercise such jurisdiction as a Judge may exercise in chambers, subject to certain limitations which are not presently relevant. I therefore consider I have power to consider this application for extension.
(Page 4)
4 On 19 October 2000 and 16 November 2000 Nisbet DCJ made orders in District Court action CIV 4407 of 1998 on certain preliminary questions of law and other matters. An appeal was lodged by the plaintiff on 9 March 2001. It was lodged out of time but the Full Court gave leave to do so on 19 February 2001. This meant that any cross-appeal by the respondent needed to be lodged within 21 days of 9 March, that is by 30 March. The present application for an extension of time was lodged on 11 May. It is thus one month and 11 days out of time. The length of delay is not great. The appellant will not be prejudiced seriously by the delay in that the hearing of the appeal will not be delayed. The appeal index has not yet been settled and the appeal has not, of course, been entered for hearing. The cross-appeal which the respondent seeks to run is on a very narrow point of law and will not require any additional papers to be added to the appeal book. It would take, I would think, no more than half an hour extra to argue by both counsel on the hearing of the appeal. I consider that the proposed cross-appeal has arguable merit.
5 What was the reason for the delay? The affidavit of Mr Civitella in support states that the defendant's counsel in the trial before Nisbet DCJ was Mr Kevin Pratt and that the defendant's solicitor desired to seek his advice on the proposed cross-appeal. As previously mentioned, the appellant's appeal was lodged on 9 March. On 10 March Mr Civitella was advised by Mr Kevin Pratt that he had been diagnosed with lung cancer and was required to undergo further medical investigations to determine the extent of the disease and how it should be treated. So, reading between the lines, the solicitor did nothing for a period, perhaps waiting on Mr Pratt to recover. In or about early April he was advised by Mr Pratt that he was required to undergo intensive and lengthy chemotherapy and was uncertain when he would resume work. On 1 May the solicitor then gave instructions to Mr Philip McCann of counsel to advise on the appeal. A letter was sent on that day to the solicitors for the plaintiff advising that the possibility of a cross-appeal was being considered. Mr McCann's written advice was received on 8 May and this application for extension lodged on 11 May.
6 I think the defendant's solicitor was wrong in waiting a month for Mr Pratt's advice in the face of the 21 day period running and Mr Pratt's very serious illness. The solicitor should have immediately sought another counsel. Nevertheless, when I weigh up all the factors, I consider the appellant has made out a case for an extension of time. In addition to the factors which I have discussed above, I repeat that the appellant was itself out of time with its appeal and obtained an extension of time from the Full Court. I propose to make the following orders:
(Page 5)
- 1. I extend the time within which the respondent (defendant) may cross-appeal against the orders of his Honour Judge Nisbet made on 16 November 2000, to 11 May 2001.
2. The respondent's minute of proposed notice of cross-appeal dated 11 May 2001 filed herein do stand as the notice of cross-appeal and service be dispensed with.
3. The respondent do pay the appellant's costs of this application in any event.
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