Fraser v National Australia Bank No. Scgrg-99-1085

[2000] SASC 372

[2000] SASC 372

SYDNEY FRASER  v  NATIONAL AUSTRALIA BANK

Appeal From A Master (Ex Tempore)

1................ LANDER J....... This matter has been put in a general chamber list for hearing.

1. The applicant was a plaintiff in the District Court in a claim against the respondent for damages.

2. On 2 November 1998, a judge of the District Court found in favour of the plaintiff, and awarded the plaintiff $20,841 which sum included both damages and interest. Although the plaintiff was successful in those proceedings in obtaining a judgment, the judgment was significantly less than the plaintiff had sought.

3. On 16 November 1998, the respondent appealed against the order made by the District Court judge.  In response the plaintiff filed a Notice of Alternative Contention, but no cross-appeal. Eventually, on 29 April 1999, the respondent withdrew the appeal which, of course, also had the effect of causing the abandonment of the plaintiff’s notice of alternative contention.

4. On 9 September 1999, more than ten months after the District Court judge’s order, the plaintiff filed an application and supporting affidavit seeking an extension of time within which to appeal against the decision of the District Court judge. The plaintiff had an appeal as of right from the decision of the District Court judge, it being a final decision of the judge of the District Court; s.43(1)(c) of the District Court Act 1991.

5. Because the plaintiff had an appeal as of right from the final judgment, the appeal was to be governed by r 95 of the Supreme Court Rules: r 96A.04.  Rule 95 provides that all appeals to the Full Court shall be instituted by filing and serving a notice of appeal which should contain the information contained in r 95.01. The notice of appeal is to be served on all parties directly affected by the appeal, and in the case of an appeal from the District Court, on the District Court; r 95.01(2).

6. Rule 95.02 provides that an appeal as of right, which this would have been, must be instituted within 14 days after the decision, judgment, order or award appealed from, or within such other time as the Court may fix.

7. The procedure which has been adopted by the plaintiff is inappropriate. The plaintiff applied for an extension of time within which to appeal without first filing the notice of appeal. It is the notice of appeal which gives this Court jurisdiction. That is the primary proceeding. An application for extension of time within which to appeal is the secondary proceeding.

8. It is clear that if a notice of appeal is filed outside the time prescribed by the rules of court the court has jurisdiction and power to extend the time within which to appeal. That jurisdiction arises from r 95.02 itself.

9. Further power is given to the court in r 3.04(d) and r 6.02, and, by s 48 of the Limitations of Actions Act 1936.  However, the power to extend time only arises after the notice of appeal has been filed.

10. In any event, a Master of this Court heard the plaintiff’s application for an extension of time to file the notice of appeal and, on 1 November 1999, he dismissed it.  He did so because he thought the delay in attempting to institute the appeal, in all the circumstances, was too great, and because, in any event, in his opinion, the proposed appeal lacked merit.

11. On 18 August 2000, the plaintiff applied for an extension of time in which to appeal against the Master’s order made on 1 November 1999, dismissing the application for an application for an extension of time within which to appeal the decision from the District Court judge. The matter came on before another Master in this Court, and on 3 October 2000, that Master dismissed that further application for an extension of time.

12. On 13 October 2000, the plaintiff made a further application in the following terms:

    “1.     General directions;

    2...... To Appeal against the Fiat or Determination made by Judge Kelly on 3/10/2000 denying extension of time to Appeal against Master Bowen Pain’s Determination of 1/11/99 on one or the other or all of the several grounds herewith attached on Continuation Sheets 1-12.  Ex parte. Other supporting documents known as Exhibit SF “I” and Exhibit SF “A” are also attached or accompany this Application.”

13. In summary, therefore, the matter before me is purportedly an appeal against Judge Kelly’s refusal to extend time to allow the plaintiff to appeal against Judge Bowen Pain’s refusal to extend time to allow the plaintiff to appeal from the final judgment of the District Court.

14. Putting the matter that way shows how entirely inappropriate the procedure, which the plaintiff has adopted, has been and which unfortunately the court has allowed him to pursue.

15. If the appropriate procedure had been adopted, the plaintiff would have lodged his notice of appeal, which he has annexed to an affidavit, and, in that notice of appeal, sought an extension of time within which to appeal. Both the notice of appeal and the extension would have been considered by the Full Court and the Full Court would have ruled upon that application for an extension, and if the application had been granted, the appeal.

16. As it is, the procedure adopted has simply led to the confusion to which I have referred. In my opinion, the plaintiff’s present appeal is incompetent. It is incompetent because the procedure upon which it is based is itself incompetent.

17. Assuming the appeal to be incompetent, the question is whether the present appeal is an appeal to the Full Court or to a single Judge. If the order of Master Kelly was an interlocutory order, then an appeal would lie to a single Judge; r 106.05(2).  If, on the other hand, his order was a final order, then this appeal lies to the Full Court; r 106.05(1).

18. I think Master Kelly’s order refusing the plaintiff an extension of time within which to appeal from the Master Bowen Pain’s decision was an interlocutory order and an appeal lies to a single Judge. In those circumstances, in my opinion, it would be appropriate for me to dismiss the appeal as incompetent.

19. If I am wrong about that, and Master Kelly’s order was a final order, then this appeal lies to the Full Court. If it lies to the Full Court, then I could exercise the power given to a single Judge under r 95.08 and dismiss the appeal as incompetent.  Rule 95.08 provides that a judge can dismiss an appeal as incompetent on the application of the respondent. I do not think that means the jurisdiction is only enlivened upon the respondent’s application.  In my opinion, the judge could make an order of that kind, of the judge’s own motion, if satisfied the appeal is incompetent.

20. However, in this case, Mr Ross-Smith, who has appeared with Mr Jarvis on behalf of the respondent, has applied, in the event that this is an appeal to the Full Court, for me to exercise the jurisdiction given to me under r 95.08. In those circumstances, even if the appeal lies to a Full Court, in my opinion, it ought to be dismissed as incompetent, and I do so.

21. The result, of course, is unsatisfactory. The plaintiff was very late in his application for an extension of time within which to appeal. As I have already said, that was an inappropriate procedure. If he had lodged his notice of appeal, instead of an application for extension of time within which to appeal, the notice of appeal would have been ten months out of time.  However, in my opinion, that is the procedure which should have been adopted, and the application for an extension of time should have been endorsed on the notice of appeal which then would have allowed the Full Court to consider that application.

22. However for the reasons given, I dismiss the appeal as incompetent.