Geoffrey S. Ballantyne and John Brendan Sullivan v the Electricity Trust of South Australia No. SCGRG 93/985 Judgment No. 4275 Number of Pages 6 Appeals Extension of Time

[1993] SASC 4275

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Appeals - extension of time - Judge granted application to extend time for the bringing of an application for leave to appeal from the order of an Arbitrator made under the Commercial Arbitration Act 1986 outside the period of 14 days provided by SCR R 97.04A(1) and at the same time granted leave to appeal pursuant to s.38(4)(b) of the Act - both applications heard together, ex parte - subsequent application by respondent to the appeal to revoke the order extending time on the ground that it should not have been heard ex parte and should have been served pursuant to SCR R 67.04 - held, refusing the application that the requirement for service of interlocutory applications imposed by R 67.04 may be dispensed with by the Court for reasons of convenience or for any other proper reason - applications to extend time and for leave to appeal were often heard together and such a course was not irregular - furthermore, the jurisdiction to revoke an order given by Rule 3.04(f) should only be invoked in cases where there had been a mistake or oversight or a significant change of circumstances - it was not appropriate to use Rule 3.04(f) as a vehicle to secure a review of an interlocutory order on the merits.
Commercial Arbitration Act 1986s.38; SCR R 3.04(a) and (f); SCR R 67.03(a); SCR R 67.04 and SCR R 97.04A(1). Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990) 20 NSWLR 221, not followed.

HRNG ADELAIDE, 20 September 1993 #DATE 19:11:1993
Counsel for appellants:     Mr M. Bell with him
   Mr A. Phelps
Solicitors for appellants: Piper Alderman
Counsel for respondent:     Mr K McCarthy QC
   with him Mr R Sallis
Solicitors for respondent: Mouldens

ORDER
Appeal dismissed.

JUDGE1 PERRY J The abovenamed appellants ("the appellants"), together with the respondent, ("ETSA") were parties to an arbitration conducted under the Commercial Arbitration Act 1986 ("the Act"). The arbitration was to do with a number of claims arising out of the Ash Wednesday bushfire in the south-east which occurred on 16 February 1983. Two fires in particular, known as Claywells and Narraweena, were said to have caused damage the subject of various claims. 2. The arbitration in question concerned claims arising out of the Narraweena fire. 3. The Arbitrator was the late Mr Michael Teasdale-Smith who died on 15 May 1993. He conducted hearings in 1991 and 1992. On 14 June 1992 he pronounced ex tempore reasons, the transcript of which he signed on 16 June 1992. The signed transcript constitutes his award. 4. Subsequently, on 8 December 1992 at a further hearing before him, the Arbitrator dealt with arguments as to costs, and in particular, but not limited to, costs said to have been incurred by the appellants with respect to their investigation of the circumstances of another fire known as the Baker's fire. It appears that at one stage ETSA had put forward the suggestion that some of the properties said to have been damaged in the Narraweena fire might have been damaged by the Baker's fire which fact, if established, would, presumably, have exonerated ETSA. That allegation was not persisted with for very long. 5. Apparently it was abandoned by the time what has been described as the second preliminary hearing, which preceded the substantive hearing of the arbitration, took place. The appellants assert that their investigation of the circumstances of the Baker's fire, in the light of the suggestions which at that stage had emanated from ETSA, gave rise to costs of the order of $50,000 - $60,000. 6. At the hearing on 8 December 1992, the appellants submitted that the Arbitrator should order that the costs with respect to their investigation of the Baker's fire be paid by ETSA. Through its counsel, ETSA opposed that submission. The Arbitrator reserved his decision. 7. On 27 April 1993, he published a further ruling with reasons in which he rejected the application for costs to do with the Baker's fire. In the course of the reasons, he sets out his understanding of the way in which the existence of the Baker's fire has been raised, and eventually not pursued, by ETSA. In the reasons he expresses the view that the arbitration proceeded only with respect to the boundaries of the Narraweena fire (as opposed to another fire called the Avenue fire), and he said: "I do not think that I have any jurisdiction in respect to the Baker fire". 8. By an ex parte summons filed in this Court on 28 May 1993, the appellants (in the summons then described as "the claimants") sought orders:
    "1. That an extension of time be granted to the claimants
    within which to bring this Application for leave to appeal.
2. That leave to appeal pursuant to Section 38 of the
    Commercial Arbitration Act 1986 of the decision of
    M. Teasdale- Smith delivered on the 27th day of April 1993
    be granted to the claimants.
3. Any other order the Court deems necessary." 9. The right to bring an appeal to the Supreme Court from an award of an Arbitrator is created by s.38 of the Act. Unless the appeal is brought by consent, it is limited to "any question of law arising out of an award" (s.38(2)), and even then, may be brought only with the leave of the Supreme Court (s.39(4)(b)). 10. The requirement for leave is further circumscribed by the provisions of s.38(5) which reads:
    "(5) The Supreme Court shall not grant leave under
    subsection (4)(b) unless it considers that-
    (a) having regard to all the circumstances, the determination
    of the question of law concerned could substantially affect the
    rights of one or more parties to the arbitration agreement;
    and
    (b) there is-
    (i) a manifest error of law on the face of the award;
    or
    (ii) strong evidence that the arbitrator or umpire made an
    error of law and that the determination of the question may
    add, or may be likely to add, substantially to the certainty
    of commercial law." 11. Applications for leave to appeal to this Court in the present circumstances are governed by Rule 97.04A. The relevant parts of that rule are:
    "(1) Where any appeal to the Supreme Court from a Court
    (other than a District Court or a Local Court), or a tribunal,
    is subject to obtaining leave from the Supreme Court the leave
    may be sought on an ex parte summons which shall be issued
    within 14 days of the making of the judgment or order complained
    of or within such other time as is provided by statute.
    (2) The summons shall be heard by a Judge in Chambers ex
    parte, or upon such notice to other interested persons as the
    Court may direct." 12. Although I have some hesitation about the matter, it was not suggested before me that the Arbitrator did not constitute a "tribunal" for the purposes of the rule. Given that there is no time for the making of an application for leave to appeal provided in the Act, the period of 14 days referred to in Rule 97.04A(1) applies. The application of that rule put the appellants over two weeks out of time in applying for leave. Hence the request for an extension of time which finds expression in paragraph 1 of the summons. 13. The appellants' application was supported by the affidavit of a Mr Phelps filed on 31 May 1993 (document 2). Mr Phelps identifies himself as the solicitor within the firm of solicitors acting for the appellants, who had the care and conduct of the matter. 14. In paragraph 14 of the affidavit he states that he -
    "...mistakenly believed that the claimants had 28 days from
    the date of receipt of the Arbitrator's reasons within which
    to institute appeal proceedings." 15. He goes on to say: "I did not become aware that the actual period within which to bring an appeal (sic) until the 25th day of May 1993 when I was advised accordingly by counsel, Mr Michael Bell." 16. In paragraph 15, Mr Phelps further deposes:
    "It is submitted by the claimants that the Electricity
    Trust of South Australia (the defendant in the said Arbitration)
    will suffer no prejudice by reason of the granting of an extension
    of time to bring this appeal as:-
    (a) the appeal is brought within a very short period of time
    following the expiry of the prescribed period for appeal;
    (b) no further investigation or evidence is required by any
    party for the hearing of this appeal point;
    (c) as M. Teasdale-Smith concluded he did not have
    jurisdiction in the matter, the claimants contend that in the
    normal course they would be able to refer the matter
    specifically to him pursuant to the terms of the said Agreement
    and Commercial Arbitration Act 1986. As M. Teasdale-Smith is
    now deceased no such application can be made by the claimants
    and would require the appointment of a new Arbitrator to decide
    such question." 17. On 25 June 1993, the appellants' summons came on for hearing before Millhouse J. The matter proceeded ex parte before him, and after hearing Mr Bell of counsel for the appellants, His Honour made an order giving leave extending the time within which to seek leave to appeal until 29 May 1993 (the day after the summons was filed in this Court), and proceeded then to give leave accordingly. Pursuant to that leave, on 8 July 1993 a notice of appeal (document 5) was lodged. In the notice of appeal, the appellants seek orders, inter alia, that the decision of the Arbitrator be set aside and that there be an order that ETSA pay the appellants' costs of the investigations of the "Baker's fire" to be agreed or taxed. 18. By an application, curiously described as an "application for directions", filed on 10 August 1993 (document 6), ETSA seeks orders, inter alia:
    "1. That the Order made by His Honour Justice Millhouse
    on the 25th day of June 1993 granting (sic) that the Claimants
    be given leave to extend the time within which to seek leave to
    appeal until the 29th day of May 1993 be revoked and/or set
    aside.
    2. That the Order of His Honour Justice Millhouse made on the
    25th day of June 1993 that the claimants be granted leave to
    appeal be revoked and/or set aside." 19. It appears from the affidavit in support of the application, namely, an affidavit of a Mr Sallis, a solicitor in the employ of the solicitors for ETSA, that it was not until the receipt by him of a letter dated 8 July 1993 from the solicitors for the appellants, that he was made aware that an order had been made by Millhouse J giving leave to appeal. Be that as it may, it is that application, that is to say the application to revoke the orders made by Millhouse J, which has been pursued before me. 20. Mr McCarthy QC who appeared for ETSA, contended that an application to extend time "cannot be heard ex parte". In support of that submission, he referred to Rules 67.03 and 67.04. The relevant parts of those rules provide:
    "67.03(1) A person may seek an interlocutory order without
    filing an application or without serving such application
    where:
    Urgency (a) the preparation of the application, or the filing
    or service (as the case may be) of the application would cause
    undue delay or other mischief to the applicant; or
    By consent (b) where all parties interested consent to the
    order sought; or
    Where allowed by Rules or practice (c) under these Rules or
    the practice of the Court, the order may properly be made
    without prior filing and service of an application. 67.04(1)
    Except in cases within Rule 67.03, no application shall be heard
    unless it has previously been filed, and served on all other
parties likely to be affected thereby." 21. Mr McCarthy submitted that R 67.03(1) was not of application, and that in those circumstances the obligation to serve an application which finds expression in rule 67.04(1) was absolute. 22. In my opinion, that submission represents a view of the rules which is overly rigid. In the first place, I am not sure that this case was not within R 67.03(1), in that the appellants' application was accompanied by circumstances of urgency. 23. Furthermore, the application for leave, as opposed to the application for an extension of time, is expressly dealt with by Rule 97.04A(1) in terms which permit such an application to be brought on an ex parte summons. I do not agree with Mr McCarthy's submission that the application for an extension of time should have been brought separately and dealt with separately. As a matter of convenience, applications to extend time for bringing of an application are commonly incorporated with the application itself, and dealt with on the one occasion by a Judge or Master. 24. It is true that the view was expressed by Cole J of the Supreme Court of New South Wales in Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990) 20 NSWLR 221 that in a similar context arising under the CommercialArbitration Act (1984) (NSW), it is wrong to merge an application to extend time to lodge a notice of appeal with the application for leave to appeal itself. But the expression of such a view cannot be regarded as a finding as to a matter of law, and with respect to Cole J, I am unable to agree that the two applications must necessarily be brought and considered separately. 25. It was, of course, always open to Millhouse J to have directed service of the application before entertaining it, but he chose not to do so. Other judges might have taken another course. Even if it was suggested that the matter was not one of urgency coming within Rule 67.03(a), what appears to be the absolute requirement for service under Rule 67.04 may be, and commonly is where there is good reason to do so, waived by the Court. Apart from any other rule which might permit such a waiver, the Court clearly has power to dispense with such a requirement under Rule 3.04(a). 26. The application to revoke the order made by Millhouse J proceeds pursuant to Rule 3.04(f) which gives a general power to the Court in its discretion to "correct, revoke, or vary any order by a subsequent order;". 27. There are several observations which should be made as to that rule. In the first place, applications to revoke or vary orders should normally be made to the Judge who was the author of the order the subject of the application. But that did not occur in this case only because Millhouse J was engaged on other duties which precluded that course. In the second place, where the appropriate course is to lodge an appeal against an order, it is not appropriate to circumvent the requirements for an appeal by recourse to R
3.04(f). 28. Many of the arguments adduced by Mr McCarthy were in the nature of arguments going to the merits of the making of the order giving leave to appeal. Not without some justification, he pointed to what might be thought to be some difficulty in characterising the award in question, that is, the refusal to make the order sought as to costs, as one to which s.38(5)(a) and (b) of the Act could properly apply. But Rule 3.04(f) does not, in my opinion, confer a jurisdiction which should be exercised simply by reviewing the merits of an order which has previously been made. Rather, it is of application where there has been some mistake or oversight, or where there has been a significant change of circumstances since the order the subject of the application was made. 29. In advancing the argument that Justice Millhouse should not have entertained the application, insofar as it sought an extension of time, ex parte, for the reasons which I have given, it was within His Honour's discretion to proceed as he did, and I would not be prepared to interfere on that ground. 30. Mr McCarthy also suggested that there had not been a full disclosure by the appellant of all relevant matters which should have been put before the Court, given that the application was proceeding ex parte. It is true that an ex parte order may be revoked or quashed if the person obtaining it has failed to honour the very strict obligations of candour which accompany an application for such an order. I have, however, reviewed the material and I am not satisfied that there was any relevant failure to make full disclosure. 31. However the matter is approached, and without attempting to address in detail all of the arguments put by Mr McCarthy, in my opinion, no ground has been made out to interfere with the orders appealed from. 32. That is not to say that the Full Court may well take the view, if the appeal proceeds, that it was not a proper case for the grant of leave in the first place. The requirements of s.38(5) are very strict, and are obviously intended to limit very substantially the number of cases to be entertained by this Court by way of appeal from Arbitrators. Because of the manner in which the application has proceeded, Millhouse J was not given the benefit of the arguments which were put to me by ETSA with respect to s.38(5) of the Act. It is open to the Full Court to revoke leave, after they have had the benefit of those arguments. But that is a matter for the Full Court, not for me. ETSA's application is dismissed. It may be that I should give some directions for the setting down of the appeal. 33. I will also hear the parties as to costs.