Graziano v Graziano - [2008] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
GRAZIANO v GRAZIANO
[2008] SASC 142
Judgment of The Honourable Justice Bleby
27 May 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal against decision of District Court trial judge refusing permission to amend amended statement of claim and defence to counterclaim and reply (“the pleadings appeal”) – appeal against decision of District Court trial judge to refuse to grant leave for appellant to reopen his case to call further evidence (“the reopening appeal”) – both decisions made during course of trial – evidence in trial completed but not final addresses – whether appeal against interlocutory judgment of a District Court judge lies as of right – whether either order constituted an interlocutory judgment for the purposes of District Court Act 1991 s 43(2)(b) – whether either order was a ruling made in the course of trial – pleadings appeal held to be against interlocutory judgment – extension of time sought – consideration of reasons for delay – extension of time refused – reopening appeal held not to be against interlocutory judgment – reopening appeal dismissed as being incompetent.
District Court Act 1991 (SA) s 43; Supreme Court Civil Rules 2006 (SA) r 281, 283, 5; District Court Civil Rules 1987 (SA) r 74A.04; Criminal Appeal Act 1912 (NSW) s 5F, referred to.
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; R v Powch (1988) 14 NSWLR 136; R v Steffan (1993) 30 NSWLR 633; Corporation of the City of Mitcham v Fusco (2001) 115 LGERA 356, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"interlocutory judgment"

GRAZIANO v GRAZIANO
[2008] SASC 142
Miscellaneous Appeal
BLEBY J.
Introduction

The appellant, Bruno Graziano (“the plaintiff”), is the plaintiff in an action in the District Court. The respondent is his brother, Antonio Graziano (“the defendant”) and is the defendant in the District Court action.
Among other things, the plaintiff seeks, in the District Court action, the dissolution of a partnership between the plaintiff, on the one hand, and either the defendant or the defendant and his wife, on the other hand, and the payment to him of the proceeds of a certain disability insurance policy to which the plaintiff claims to be beneficially entitled.
By his defence, the defendant pleads that the policy was held by the plaintiff and the defendant on trust for the partnership and that the proceeds were a partnership asset. He further pleads that there was an agreement between the parties in September 1999 whereby the proceeds of the insurance policy and certain other benefits were to be paid or provided to the plaintiff, as long as the plaintiff honoured certain obligations under the agreement to transfer to the defendant and his wife his entire partnership interest and his shares in certain companies associated with the operation of the partnership. One of those companies was HPS International Pty Ltd. The defendant, by counterclaim, seeks a declaration that the agreement was entered into and seeks an order for specific performance of the agreement.
By his defence to the counterclaim, the plaintiff denies that such an agreement exists.
The plaintiff now appeals against what are said to be two interlocutory judgments of a judge of the District Court. The first (“the pleadings appeal”) is against an order of the Judge refusing the plaintiff’s application for permission to amend his amended statement of claim and defence to counterclaim and reply. The amendments sought to be made were to plead, by way of alternative, that if an agreement for the apportionment of partnership assets was reached, it was obtained by unconscionable conduct and undue influence of the defendant, and that the agreement is therefore of no effect.
The second appeal (“the reopening appeal”) is against the refusal of the trial Judge to grant the plaintiff leave to reopen his case to call further evidence based on the report of a handwriting expert.
The plaintiff also applies for permission to appeal against these interlocutory judgements to the extent that permission may be necessary.
Each appeal is said to be an appeal against an interlocutory judgment of the Judge. Section 43(1) of the District Court Act 1991 provides that a party to an action may, “in accordance with the rules of the appellate court, appeal against any judgment given in the action”. Section 43(2)(b) provides that in the case of an interlocutory judgement given by a Judge, the appeal lies to the Supreme Court constituted of a single Judge.
Rule 281 of the Supreme Court Civil Rules 2006 specifies the circumstances in which permission to appeal is necessary. While permission is necessary in respect of “an interlocutory judgment of the Court given by a Judge”,[1] and in certain other types of appeal, it does not specify that permission is necessary in respect of an interlocutory judgment of a judge of the District Court. The appeal must therefore be taken to be an appeal as of right.
[1] Rule 281(a)(i).
I reject the argument of the respondent that the effect of s 43(1) of the District Court Act is to incorporate, by reference, the provisions of r 281(a)(i) so that the reference to “Court” in that rule is a reference to the District Court. The language of s 43(1) of the District Court Act is insufficient to constitute the incorporation by reference of r 281. It refers to and relies on the rules of this Court for what they say about the regulation of appeals to this Court. The word “Court” in r 281(a)(i) is defined in r 4 as meaning the Supreme Court unless the contrary intention appears. It does not so appear. The reference in that rule to this Court is therefore a reference to the Supreme Court.
Rule 283(1) of the Supreme Court Civil Rules 2006 provides that an appeal must be commenced within 21 days after the date of the judgment subject to the appeal. The decision that was the subject of the pleadings appeal was made on 10 August 2007. The decision that was the subject of the reopening appeal was made on 18 December 2007. Subject to any contrary direction by the Court, time does not run during the Christmas vacation.[2] The plaintiff’s notice of appeal was filed on 14 January 2008. Accordingly, the plaintiff needs an extension of time if he is to succeed in the pleadings appeal. He does not need an extension for the reopening appeal.
[2] Supreme Court Civil Rules 2006, Rule 5(5)(b). The Christmas vacation is from Christmas day in one year until, but not including, the second Monday in January in the following year: Practice Direction 1.2.2.
The relevant history
Before dealing with any issues necessary for the proper resolution of the appeals, it is necessary to set forth some relevant history concerning the action in the District Court.
The plaintiff’s action was commenced on 19 January 2004. There were numerous contested interlocutory applications and appeals in respect thereof within the District Court. Before the proceedings were commenced, the plaintiff engaged a handwriting expert to provide an opinion as to the genuineness of the signature of the plaintiff on certain documents, including certain letters purporting to be letters of resignation of the plaintiff as a director and secretary of HPS International Pty Ltd. At some time subsequent to 13 January 2006, the expert advised the plaintiff or his solicitors that he had retired and would be unable to provide a final report.
The defendant, by his defence filed on 21 October 2004, alleged and has continued to allege that the plaintiff resigned as a director of HPS International Pty Ltd in 1998. That fact continued to be denied by the plaintiff up to and including the trial. His alleged resignation and the validity of any purported written resignation therefore was and remained an issue since before the action commenced.
The plaintiff asserts that there were delays by the defendant in his obtaining from the defendant documents which he claimed bore his signature for the purpose of comparing with what he believed were forged signatures on some documents including his purported resignation.
It appears that initial contact was made with a different handwriting expert, Mr Talbot-Wilson, on or about 3 May 2007, but that expert was not formally retained until 19 June 2007. There was some delay in that expert completing his preliminary work apparently because of a failure by the plaintiff to pay the necessary fees. On 29 June he advised that other commitments prevented him from working on the plaintiff’s case until after 17 July.
On 18 July 2007 the expert wrote to the plaintiff’s solicitor expressing surprise that the trial was to commence on 23 July and suggesting a “re-scheduling” of the trial. He said that, in order to have a report available by 20 July he would “aim to detect one provable case of forgery of one of the 38 original questioned signatures” he had been asked to examine. He noted that there were also 16 non-original questioned signatures and 128 original standards of comparison. He explained in some detail the progress he had made, and referred to the difficulty of the task. However, it was quite clear that he could not complete his assignment before the trial. He advised that for him “to adequately deal with it would require, as a very provisional estimate, a further month”. It is also evident from a letter dated 19 July from the plaintiff’s solicitors to the expert that they anticipated the possibility that certain documents uplifted from the Court file bearing the plaintiff’s signature might be required by him beyond 26 July, being the date when they were to be returned to the Court.
On 20 July the expert provided a report, required by the plaintiff’s solicitors by that day, in which he referred to “a severe and possibly decisive restriction in the time available for examination and report”. He reported on two signatures only, namely those on the letters of resignation as director and secretary of HPS International Pty Ltd. He reported in each case that there was “no clear indication that the questioned signature [on the letter of resignation] is a forgery”. However he sounded a caveat:
Having said that I repeat that there has been a shortage of time. Many of these matters require lengthy study and lengthy thought, and it does happen that crucial evidence may appear, or a crucial possibility may occur to the mind, at a relatively late stage, forcing a complete revision of opinion. A rush to opine before the matter has been fully studied and thought out is a recipe for error.
From all the correspondence it was clear that the expert’s work was far from complete both in respect of the signatures reported on and in respect of other signatures in question.
The trial did commence in the District Court on 23 July 2007, the plaintiff having filed, on the same day, a certificate of readiness for trial pursuant to r 74A.04 of the District Court Civil Rules 1987, notwithstanding the advice of the handwriting expert. There was no application for an adjournment of the trial. In fact, the expert’s final report was not produced until 5 October 2007.
The trial continued before the District Court Judge until 1 August 2007. Certain orders were made and the trial was adjourned to 27 August 2007. The plaintiff had completed his evidence.
On 8 August 2007, the plaintiff filed his application for permission to amend the statement of claim and reply and defence to counterclaim. That application was heard and refused by the trial Judge on 10 August 2007. The Judge gave brief reasons and reserved the right to publish further and more detailed reasons. No further reasons have been published.
The trial came on for mention at other times and resumed on 27 August, continuing to 7 September 2007. On 4 September 2007, the plaintiff’s handwriting expert verbally informed the plaintiff’s solicitors that his examination of the relevant documents indicated, in his opinion, a concealed forgery on at least some of the documents he had examined. That advice was confirmed in a letter of the same date received on 6 September 2007.
On 6 September 2007, during the course of the trial, the plaintiff was granted permission to amend his reply to plead certain matters of law. No mention was made of any contemplated or intended appeal against the earlier refusal of permission to amend the pleadings.
On 7 September 2007, the evidence having been completed, the trial was adjourned to a date to be fixed for hearing the addresses of counsel.
On 31 October 2007, having received the final report of the handwriting expert dated 5 October 2007, the plaintiff applied to reopen the hearing based on the report of the handwriting expert.
The matter was listed for further mention on 12 November 2007 and again on 15 November 2007, when directions were given for the exchange of written submissions for a hearing of the plaintiff’s application on 18 December 2007. On 18 December 2007, the plaintiff’s application to reopen was heard and was dismissed. The trial Judge gave no reasons, indicating that he would do so in the course of his final reasons for judgment.
I was informed by counsel that final addresses in the trial have not yet taken place pending the resolution of this appeal.
Whether either of the orders constitutes an “interlocutory judgment”
The first issue is not whether, as in many cases, each of the determinations of the trial Judge is a final judgment or an interlocutory judgement. There is no suggestion that either of the determinations is a final judgment. The question is whether each of them is an interlocutory judgment. Both determinations were made after the commencement and in the course of the trial.
In Legal Practitioners Complaints Committee v A Practitioner,[3] objection was taken before a single judge that no appeal lay to the Supreme Court from a dismissal by the Legal Practitioners Disciplinary Tribunal of a charge of unprofessional conduct. The Judge determined that objection as a preliminary question and decided that the appeal was competent. His decision was drawn up as a formal order of the court and was sealed. The Complaints Committee appealed to the Full Court pursuant to leave granted by the Judge. The first question to be decided by the Full Court was whether the decision of the single Judge was a “judgment, ... order, or direction”. King CJ decided that the word “direction” added nothing to the words “judgment” and “order”.
[3] (1987) 46 SASR 126.
The Court unanimously held that the determination of the single Judge was an interlocutory judgment or order from which an appeal by leave lay to the Full Court. In the course of his judgment, King CJ said:
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.
Into which category does the learned judge’s decision as to the competency of the appeal, fall? In the generality of cases, a ruling that an appeal is competent or that the court or judge has jurisdiction to entertain the particular appeal or application before it, is an incidental ruling on a submission made in the course of the hearing and is not made the subject of a judgment or order. It is therefore not appealable. But it may be made the subject of a judgment or order. Whether that has occurred depends upon the treatment of the matter by the court or judge. In the present case, the learned judge expressly determined the question of competency as a preliminary point separate and distinct from the other issues which fell for determination on the appeal. His intention was to decide competency as a separate issue and to make his decision upon that issue the subject of a judgment or order. He emphasised that by giving leave to appeal and indicating that he was not seized of the appeal generally. The drawing up and sealing of the order on the basis of a certificate of the judge’s associate is not, of course, decisive, but it tends to confirm the status of the judge’s decision.[4]
[4] Ibid 127-128.
The Chief Justice distinguished between incidental rulings on the one hand and judgments or orders on the other. Much will depend on the context in which the decision is made, although the drawing and sealing of an order is not decisive. It “tends to confirm” the status of the judge’s decision.
Olsson J also characterised the decision as an interlocutory judgment determining the preliminary issue. He concluded:[5]
In this regard it is to be recalled that the expressions “judgment” and “order” have a technical, legal, signification. Essentially they embrace formal decisions, binding on and enforceable between the parties, which dispose of and determine a specific matter or question in proceedings. They are what Barwick CJ has described as “operative judicial acts” which are “definitive of legal rights”: see N J Williams, Supreme Court Civil Procedure, Victoria, p 285; and discussion in Ah Toy v Registrar of Companies (NT) (1985) 61 ALR 583 at 588-589. It is possible to envisage “rulings” which might not comfortably fit within such a description.
[5] Ibid 137.
In R v Powch[6] the Court of Criminal Appeal of the Supreme Court of New South Wales decided that a ruling by a judge during the course of a criminal trial that a witness should not be recalled for further cross-examination did not come within the expression “interlocutory judgment or order” for the purposes of the Criminal Appeal Act 1912 (NSW). It was more akin to a ruling on evidence. In the course of his judgment, Yeldham J, with whom Carruthers and Wood JJ agreed, said:
The expression “interlocutory judgment or order” is a familiar one and is to be found in many places, for example, the Supreme Court Act 1970, s 101(2), and the various Acts mentioned in Stroud’s Judicial Dictionary, 4^th ed, vol 3 at 1445-1448, under the heading “Judgment”: see also per Samuels JA in Barton v Walker [1972] 2 NSWLR 740 at 747 ff.
Examples of interlocutory judgments and orders may be found in Halsbury’s Laws of England, 4^th ed, vol 26, par 506 at 240, and the footnote thereto. In my opinion, a ruling by a judge that evidence should or should not be admitted would not come within the expression “an interlocutory judgment or order” so as to enable the party aggrieved to seek leave to appeal during the course of a trial to this Court. Such an entitlement, notwithstanding the provision concerning the granting of leave, would give rise to the very evils which judges of this Court have on many occasions referred to when declining, in the exercise of their discretion, to entertain applications for declarations concerning procedure in matters part-heard in lower courts. So, also in my opinion, the ruling of Newman J that the witness could not be recalled for further cross-examination is no more than that, that is to say, a ruling on a procedural matter, and is not in any sense an interlocutory judgment or order.[7]
[6] (1988) 14 NSWLR 136.
[7] Ibid 137-138.

In R v Steffan[8] the New South Wales Court of Criminal Appeal held that a ruling on evidence made in advance of a criminal trial was not “an interlocutory judgment or order” for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW). In a joint judgment, the Court said:
A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a “judgment”, but that is an altogether different usage of the word “judgment” and denotes the reasons which have been expressed rather than the formal act of the court.[9]
[8] (1993) 30 NSWLR 633.
[9] Ibid 636.
The Court referred to the decision in Powch and noted that the distinction was drawn in that case between a ruling on a procedural matter and a judgment or order, but the court commented that such a distinction would “not always be an accurate one, as some procedural matters (such as an application for a change of venue or for a separate trial) would usually produce an interlocutory order whereas others (such as that which was the subject of that appeal) clearly would not”.[10]
[10] Ibid.
The Court reviewed a number of other authorities and concluded:
We can see no distinction between a ruling on evidence made in advance of the trial and one made in the course of the trial. It still cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction ... [R]ulings on evidence may always be altered – although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind.[11]
[11] Ibid 639.
A similar conclusion was reached by Debelle J in Corporation of the City of Mitcham v Fusco[12] where a ruling on the admissibility of evidence was held not to constitute an interlocutory judgment. Having referred to R v Steffan Debelle J concluded:
In my view, like considerations apply in civil proceedings of this kind. Rulings on the admissibility of evidence are capable of being changed as the hearing proceeds. Furthermore, as with a criminal trial, it is undesirable that civil proceedings should be interrupted by appeals in relation to rulings on the admissibility of evidence. Not only might the ruling be altered as the hearing proceeds but, in addition, the ultimate decision of the court might render it unnecessary to examine the correctness of the ruling on evidence.[13]
[12] (2001) 115 LGERA 356; [2001] SASC 164.
[13] Ibid [7].
In this case, both of the determinations the subject of these appeals were recorded in the records of the District Court as orders. On 10 August 2007, the record indicates, “Application to amend Statement of Claim is refused”. There was also an order that the plaintiff pay the defendant’s costs of the application. In relation to the determination made on 18 December 2007, the order recorded is, “Application for Specific Directions filed 31/10/07 seeking leave to re-open plaintiffs [sic] case is dismissed”. There was a further order that the plaintiff pay the defendant’s costs of the application.
As can be seen from the decisions to which reference has been made, the making of a formal order is not conclusive in itself.
In relation to the pleadings appeal, the order made was typical of interlocutory orders made by a civil court in relation to pleadings. Although made after the commencement of the trial, it was an order which defined the issues to be determined at the trial. I consider that it was an interlocutory order which is properly the subject of an appeal. Neither counsel dissented from that view at the hearing of the appeal.
As to the reopening appeal, although a formal order was made, this seems to have been because the plaintiff filed a written application seeking leave to reopen the plaintiff’s case. That course was no doubt followed because the trial had by then been adjourned to a date to be fixed for the addresses of counsel. The nature of the application required the filing of affidavits as to the facts which gave rise to the request to reopen, but stripped to its essentials, the application was one that could have been made orally in the course of the trial for permission to call further evidence. What matters is the substance of the application rather than the procedural vehicle by which it is made.
The application that the trial Judge refused was an application for leave “to re-open [the plaintiff’s] case on a handwriting expert report by Mr Michael Talbot-Wilson”. The opinion expressed in the report is that not only were the signatures on the two letters of resignation forged but that a number of other signatures of the plaintiff were also forged. It was conceded in argument that the plaintiff’s application, if granted, would involve much more than proving the expert opinion of Mr Talbot-Wilson. The plaintiff would have to be recalled to prove the assumptions on which Mr Talbot-Wilson’s opinion was based. There are factual disputes about those assumptions which would involve further cross-examination of the plaintiff and the calling of a number of other witnesses. The defendant would probably wish to, and would be entitled to, obtain his own expert opinion. It is clear that, if granted, the application would have the effect of extending the trial considerably.
The issue in the trial, in summary, is whether an agreement was made between the parties, the terms of the agreement and whether the agreement was partly performed. The pleadings have set those parameters. The defendant pleads the resignation of the plaintiff as a director of HPS International Pty Ltd in 1998 but only as one of a series of “incidents” which preceded the discussions which the defendant alleges resulted in the agreement. It is not alleged that the agreement included the resignation of the plaintiff as a director and secretary of HPS International Pty Ltd. It is not alleged that the resignation was in part performance of the alleged agreement. It may or may not be necessary for the trial Judge to determine whether the plaintiff in fact resigned as a director and secretary of HPS International Pty Ltd. As counsel for the plaintiff conceded in argument, the issue of the plaintiff’s resignation, whether the resignation letters were forged and whether the plaintiff’s signature on other documents was forged, goes ultimately to the plaintiff’s and possibly to the defendant’s credit.
The determination of the trial Judge affects not the issues to be determined at the trial but the evidence to be led by the parties in proving or refuting, as the case may be, the existence of the agreement. It is, in essence, a ruling on evidence made late but still in the course of the trial. It is a discretionary ruling on the right to lead evidence, the issue of relevance of the evidence to an issue in the trial being but one of the relevant considerations in the exercise of the trial Judge’s discretion.
It is akin to a ruling on the admissibility of evidence made in the course of the trial, albeit at a late stage of the trial. It is no different in substance from the type of ruling that was the subject of the appeal in R v Powch.[14] Although a formal order was made, I consider its true characterisation to be in the nature of a ruling in the course of the trial, and therefore not an interlocutory order. For that reason, the reopening appeal must be dismissed.
[14] (1998) 14 NSWLR 136.
Extension of time
The plaintiff’s pleadings appeal was not instituted until more than five months after the trial Judge’s refusal of the application for leave to amend. The application itself was for leave to amend the plaintiff’s pleadings to allege, by way of alternative plea, unconscionability and undue influence on the part of the defendant by way of defence to the defendant’s allegations concerning the existence of the agreement involving dissolution of the partnership. The application was made in the course of the trial after the plaintiff had been cross-examined, including as to the formation of the agreement and the circumstances surrounding it.
If successful, the plaintiff’s application would have introduced a new and very substantial issue into the trial. For that reason it would almost certainly have required an adjournment of the trial to enable the defendant to plead to the plaintiff’s allegations. It would have involved the recalling of the plaintiff and the calling of other disputed evidence as to the plaintiff’s mental capacity and his understanding of the affairs of the partnership and its associated companies. In other words, the amendment would have had a major and substantial effect on the course of the trial.
The application was refused. The trial proceeded on the issues determined by the pleadings without those amendments. No attempt was made at the time to institute an appeal against the trial Judge’s decision. There was no request for an adjournment to enable an appeal to be instituted. Towards the end of the evidence the plaintiff sought and was granted permission to make another amendment to his pleadings. There was no mention at that stage of any outstanding issue relating to the trial Judge’s refusal to allow the earlier amendment. All the evidence in the trial has now been completed.
In his affidavit in support of the request for an extension of time to bring the pleadings appeal the plaintiff says that he discussed the decision of the trial Judge at the time with his solicitors and counsel as to whether he should appeal against the decision. He says that after extensive discussions with his solicitors and counsel he decided to defer any opportunity to appeal against the judgment until final judgment. He says: “I also deferred my decision to appeal the amendment judgment as I wanted to wait for the final determination of the trial”. He says that he did not want to interfere with the progress of the trial.
After the Judge gave his decision on the reopening application on 18 December 2007 the plaintiff again discussed the possibility of the pleadings appeal at the same time as instituting the reopening appeal. He decided that he should appeal both matters at the same time “as it would be economically beneficial and appropriate as both judgments are interconnected”. He adds that appealing both matters at the same time would also be “appropriate and in the interests of efficient administration of the proceedings”.
In my opinion, none of those reasons justify an extension of time in which to commence the pleadings appeal. The plaintiff and his advisers must have known that the amendments, if made, would have a substantial effect on the conduct of the trial. It is no excuse for inaction to await the final judgment and then to challenge an interlocutory judgment in order to have the final judgment set aside and a retrial on issues which were never properly the subject of the trial. The issue of the amendment of the pleading was not connected with or dependent in any way on the trial Judge’s decision on the reopening question. By deciding that he did not want to interfere with the progress of the trial on the issues as then defined by the pleadings, the plaintiff was effectively electing to abandon any issues of unconscionability and undue influence. If the plaintiff was serious in the pursuit of those issues he should immediately have lodged an appeal against the interlocutory judgment, should have sought an expedited hearing of that appeal before a judge of this Court and an adjournment of the trial to enable the issues involved in the trial to be properly determined. He did not do so.
Although it is not necessary to rely on it, the defendant has deposed to substantial prejudice in the conduct of his business by the uncertainty caused by delays in the proceedings to date – delays which will be exacerbated by further delay in the hearing of an appeal and particularly if the appeal were to be allowed. Such prejudice cannot be compensated by an order for costs thrown away in his favour. I accept the defendant’s evidence in that regard.
For these reasons the plaintiff’s application for an extension of time in which to institute the pleadings appeal is dismissed.
The trial Judge gave brief reasons for dismissing the plaintiff’s application. Taken together they were ample justification for the refusal of the plaintiff’s application. If it were necessary, I would also refuse the application for an extension of time on the basis that that plaintiff has little prospect of succeeding on the appeal itself.
The merits of the reopening appeal
Notwithstanding that I consider that the reopening appeal must be dismissed because it is incompetent, the defendant nevertheless invited me to address the underlying substance of the appeal as it was argued before me. I decline to do so.
I have recorded some of the facts which might have been relevant to the trial Judge’s decision to refuse the plaintiff’s application. I have already decided that it was in the nature of a ruling made in the course of the trial. There are many factors known only to the trial Judge who has conducted the trial from the outset which may have impinged on his decision. He has not yet given reasons for the decision. He has properly decided that those reasons will be given in the course of his reasons for the final judgment. Because it is a discretionary decision it is important that those reasons be known before an appellate court embarks on a determination as to whether the decision was justified.
Because it was a ruling in the course of the trial and because many factors relating to the conduct of the trial may be brought to bear upon the making of that decision – factors known only to the trial Judge – it would be quite inappropriate of me to express any view on the merits of that decision. As with any other ruling in a trial, if a party is dissatisfied with a trial judge’s ruling, and it is a ruling which, it is said, adversely affects the outcome of the trial from the point of view of that party, the ruling may well constitute a ground of appeal against the final judgment. The reasons for such a ruling must be judged against many other matters affecting the conduct of the trial, including relevant findings of fact made by the trial Judge. Any such appeal would, in this case, be to the Full Court of the Supreme Court.[15] It is not for me to pre-empt or predict what the outcome of any such appeal on that ground might be.
[15] District Court Act 1991, s 43(2)(c).
Orders
The formal orders of the Court are:
1That the appellant’s application for an extension of time within which to appeal against the interlocutory judgment of a judge of the District Court dated 10 August 2007 in matter number 84 of 2004 in the District Court of South Australia be dismissed.
2That the appeal against the said interlocutory judgment be dismissed.
3That the purported appeal against the decision of the trial Judge in matter number 84 of 2004 in the District Court of South Australia made on 18 December 2007 be dismissed as being incompetent.
I will hear the parties as to the costs of these appeals.