Fraser v National Australia Bank No. Scciv-00-1085

FRASER v NATIONAL AUSTRALIA BANK
[2001] SASC 111
Full Court: Debelle, Williams & Wicks JJ

DEBELLE J. This is an application for an extension of time within which to appeal from a decision of a judge of the District Court. The matter has had a somewhat unfortunate history. It is necessary to refer to the essential aspects of the conduct of the action and the intended appeal.
On 9 January 1997, the applicant commenced proceedings in the District Court claiming damages against the respondent. On 2 November 1998, a judge of the District Court delivered reasons for judgment and upheld the plaintiff’s claim. The judge awarded the plaintiff $20,841, which sum included both damages and interest.
On 16 November 1998, the respondent appealed to this Court. The applicant filed a notice of alternative contention but did not file a cross-appeal. On 29 April 1999, the respondent bank discontinued its appeal. The discontinuance of the appeal had the effect of causing the applicant’s notice of alternative contention to be of no avail.
On 9 September 1999, more than 10 months after the order made by the trial judge and some five months after the respondent bank had withdrawn its appeal, the applicant filed an application for an extension of time within which to appeal together with a supporting affidavit.
On 30 September 1999, the application was heard by Master Bowen Pain. The Master made orders directing the parties to file affidavits. The application was heard on 1 November 1999. Master Bowen Pain dismissed the application. His reasons were as follows:
“The pltf in this action asserts in his affidavit that he considered that the matters in the alternative contention would raise the matters with which he disagreed in the original judgment. That cannot be so, however, since the proposed notice of appeal seeks, in effect, to obtain a higher assessment of damages.
I make allowance for the fact that the pltf is now unrepresented, but it seems to me that the delay in attempting to institute an appeal is too great in all the circumstances. In considering the merit of the proposed appeal, I note that Judge Anderson assessed the pltf’s damages on the basis of the report of the pltf’s expert rather than that of the defendant.
It seems to me therefore that the appeal, even if instituted in time, would have no merit.”
Shortly stated, the Master’s reasons were that the delay in attempting to institute the appeal was too long. He also concluded the proposed appeal lacked merit in that the District Court judge had assessed the plaintiff’s damages on the basis of the evidence of the plaintiff’s own expert.
For some time thereafter nothing further occurred. The next step occurred when the applicant wrote to the Chief Justice on 5 June 2000. The terms of that letter are not before the court. It is sufficient to note that the reply of the Chief Justice is dated 9 June 2000. It is unnecessary to repeat the terms of the letter. They are at p 146 of the first appeal book. It is sufficient to note that the Chief Justice makes it quite clear to the applicant that if he seeks to proceed any further he will have to lodge an application for an extension of time.
The applicant failed to act promptly in response to that letter and took no further step until 18 August 2000, when he applied for an extension of time within which to appeal against the order of Master Bowen Pain made on 1 November 1999. That was some 9 months after the order of 1 November 1999 and some 8 weeks after the letter from the Chief Justice. That application was heard by Master Kelly on 3 October 2000. The Master dismissed that application. He gave brief reasons. He said that, even allowing for the fact that the applicant was unrepresented, there was no explanation for the extraordinary delay in the matter. He pointed to the fact that, although the applicant had received the letter from the Chief Justice some two months before, he had taken no further step nor had acted promptly.
The applicant then appealed from the order of Master Kelly. The appeal was heard by Lander J, who held that the appeal was incompetent. His Honour concluded that the order made by Master Kelly, refusing the applicant an extension of time within which to appeal from the order of Master Bowen Pain, was an interlocutory order from which an appeal was available to a single judge. In those circumstances, he concluded that it would be appropriate for him to dismiss the appeal as incompetent. He held the appeal to be incompetent on the ground that it was purportedly an appeal against Master Kelly’s refusal to extend time to allow the applicant to appeal against Master Bowen Pain’s refusal to extend time to allow the applicant to appeal from the final judgment of the District Court.
Lander J went on to say that, if he was wrong in that conclusion and the order of Master Kelly was a final order so that the appeal should be made to the Full Court, he proposed to exercise the power given to a single judge under Rule 95.08 and dismiss the appeal as incompetent. An application to that effect had been made by counsel for the respondent. Lander J proceeded to dismiss the appeal as incompetent. The applicant’s response to the order of Lander J was to file a Notice of Appeal from the decision of Judge Anderson. That notice was filed on 21 November 2000.
There is no appeal from the order of Lander J. Thus the order of Lander J, dismissing the appeal from the order of Master Kelly as incompetent, stands.
On examining the papers and noticing the procedural difficulties which had occurred, I conducted a management conference on 3 April 2001. I informed the parties that the court believed that the most appropriate way to proceed would be to proceed on the footing that the applicant was making an application for an extension of time within which to appeal. That course was adopted, having regard to the fact that the applicant was unrepresented and may have been unfamiliar with the terms of the Supreme Court Rules. The parties were invited to address issues which would normally be canvassed on an application to extend the time within which to appeal and to address any submissions in relation to the decision of Lander J that the appeal to Lander J was incompetent. The parties proceeded on that footing.
The principles to be applied are well settled. They have been recently restated in Jackamarra v Krakouer (1998) 195 CLR 516, and by Wicks J in this Court in Collins v State of South Australia and Parole Board of South Australia [2000] SASC 62. It was unnecessary to refer, at length, those principles. It is sufficient for present purposes to note that, when considering an application of this kind, the court will have regard to the length of the delay, the reasons for the delay, whether there is an arguable case on appeal, and the prejudice to any respondent to the application.
It is convenient to turn first to the question whether there is an arguable case on appeal. As already mentioned, the plaintiff succeeded in the District Court. Furthermore, as was noted by Master Bowen Pain, the plaintiff recovered damages on the footing assessed by his own expert. The District Court judge had two reports of experts before him, one on behalf of the applicant and one on behalf of the respondent. The judge accepted the applicant’s report and accepted it in full. In other words, he assessed damages for the total amount contained in the report of the applicant’s expert. There was no other evidence of damage. Thus, in every respect, the applicant was wholly successful in his action in the District Court. There is, therefore, nothing which any court of appeal can now do to improve the damages to be recovered by the applicant.
Furthermore, a reading of the notice of appeal and of the submissions advanced in support of that appeal disclose that the gravamen of the applicant’s complaint is not so much the result, but the reasoning of the District Court judge which led to that result. In the end, it is the result which matters. It is not a sufficient ground of appeal that the applicant might not be content with every step in the reasoning which led to that result. As the applicant recovered the amount of damages as assessed by his own expert, he cannot improve his position. In short, there is no arguable case on appeal for the applicant.
It should be added that there are two complaints in the notice of appeal directed to an assessment of damage. They are contained in paras 27 and 28 of the notice of appeal. Those paragraphs read:
“27.That notwithstanding all matters canvassed above, the Learned Judge erred in fixing actual Damages on the basis solely of minimum returnable inventory but should have had regard also for Appellant’s loss of his licence to operate his business.
28.That not withstanding all matters canvassed above, the Learned Judge erred in assessing Damages after the facts of any wrongs held rather than on the immediate eve of the governing wrong or wrongs.”
In relation to both those grounds of appeal I repeat that there is no evidence of loss or damage other than that contained in the report of the applicant’s own expert. There is, therefore, nothing which supports those grounds of appeal.
I add that examination of the notice of appeal, of the written submissions made in support of the appeal, and of the argument presented to us today, indicates that some of the complaints made by the applicant are directed to the manner in which his claim was handled by his counsel and solicitor in the District Court. Those are not matters which this Court can now concern itself. If the applicant has any complaint against either his solicitor or his counsel in respect of their conduct of the matter, those are matters which have to be addressed in another way.
Thus, for all of these reasons, there is no basis upon which this applicant is likely to succeed, even if he were granted an extension of time within which to appeal.
In addition to these matters there has been considerable delay. Although there is no direct evidence of it, the applicant refers to the fact that he has, at times, suffered from ill health. Even if that is accepted, that might explain some delay, but it does not explain it all. On more than one occasion the applicant’s attention has been drawn to the need promptly to proceed with this matter. He has failed to heed that advice. The question of delay was a matter upon which both Masters relied. In addition, both Masters and, in particular, Master Bowen Pain, referred to the fact that the applicant had recovered damages on the basis of his own expert’s report. Both Masters were correct in their decisions.
Shortly stated, the position is as follows:
1.The applicant has failed in his application for an extension of time before both Master Bowen Pain and before Master Kelly.
2. The appeal from Master Kelly to Lander J was dismissed as incompetent.
3.The court has granted an indulgence to the applicant, as it were, to allow him to make an fresh application for an extension of time within which to appeal.
4.This Court is satisfied there is no reasonable prospect of this case succeeding on appeal. It is also impressed by the considerable delay which, to a large extent, is unexplained.
5. This Court too dismisses the application.
For all these reasons, the application for an extension of time within which to appeal is dismissed.
WILLIAMS J. I agree with the orders proposed by Debelle J for the reasons which he has given.
WICKS J. And I also agree with the orders proposed by Debelle J for the reasons that he has given.
MR ROSS-SMITH: The respondent applies for costs and including costs reserved by His Honour Justice Lander. His Honour said, at p 118 of the book, line 29, “In respect to the respondent’s application for costs” and His Honour suggested an outcome, at p 117, line 27, “Another way of looking at it would be to reserve the question of costs ... then to let you have the costs of this application”. And we adopt that approach.
HIS HONOUR: There was no appeal from Lander J?
MR ROSS-SMITH: No.
HIS HONOUR: Mr Fraser, there is an application being made against you for costs. Is there anything you wish to say?
MR FRASER: I don’t have any particularly strong argument on that. Mr Justice Lander said that the matter could have been knocked on the head in five minutes. I wasn’t competent to do that, of course, but on the other hand, I believe, that it would be unreasonable to hit me twice for costs. It’s bad enough being hit here and - what else can I say?
HIS HONOUR: Thank you, Mr Fraser.
DEBELLE J. The orders of the court will, therefore, be:
1.The application for an extension of time within which to appeal is dismissed.
2.The applicant will pay the respondent’s costs of the application and of the appeal before Lander J.

[2001] SASC 111

5 April 2001