Hall & Hall v City of Burnside (No 7)
[2008] SASC 277
•17 October 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
HALL & ANOR v CITY OF BURNSIDE & ORS (No 7)
[2008] SASC 277
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
17 October 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for permission to appeal to the Full Court, from a procedural order refusing an application for extension of time to set down appeal – whether a point of principle arises - whether the interests of justice favour a grant of permission.
Held: Permission to appeal.
Supreme Court Civil Rules 2006 (SA) r 282, referred to.
Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460; Hall &Hall v City of Burnside & Ors (No 5) [2008] SASC 82; Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219; Jackamurra v Krakouer (1998) 195 CLR 516; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; SA Government Financing Authority v Bank of New Zealand [2002] SASC 56, considered.
HALL & ANOR v CITY OF BURNSIDE & ORS (No 7)
[2008] SASC 277Full Court: Gray, Sulan and David JJ
THE COURT
This is an application for permission to appeal against a procedural order. The application has been referred by a single Judge pursuant to Rule 282(2)(b) of the Supreme Court Civil Rules 2006 (SA).
On 31 January 2006, the applicants and appellants, Mr and Mrs Hall, instituted the within proceedings seeking judicial review and other relief. On 21 September 2007, Mr and Mrs Hall sought leave to amend the inter partes summons with respect to their claims for declarations and injunctive relief. The respondents, the City of Burnside, City Apartments Pty Ltd and Katnich Dodd, sought the dismissal of the entire proceedings for want of prosecution. On 21 December 2007, a learned Judge of this Court refused Mr and Mrs Hall’s application to amend, granted the respondents’ application and dismissed the summons.[1]
[1] Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460 (Bleby J).
On 21 January 2008, Mr and Mrs Hall filed and served a notice of appeal within time.
On 27 March 2008, the learned Judge delivered his decision in respect of the costs of the applications determined by him on 21 December 2007, and ordered that Mr and Mrs Hall pay indemnity costs.[2]
[2] Hall & Hall v City of Burnside & Ors (No 5) [2008] SASC 82 (Bleby J).
On 2 May 2008, Mr and Mrs Hall filed a supplementary notice of appeal challenging the decision as to costs. Time for setting down the appeal, as filed on 21 January 2008, expired on 21 July 2008.
On 21 July 2008, Mr and Mrs Hall sought an extension of time to set down their appeal. On 8 August 2008, that application was heard and dismissed by another learned Judge of this Court.[3] In the course of his reasons, the Judge observed:[4]
Under r 295(2) of the Supreme Court Civil Rules 2006, the appeal, if not set down within six months, is taken to have been discontinued and lapses. Time ran out on 21 July 2008. Towards the end of May the solicitors acting for Mr and Mrs Hall commenced some work in relation to the preparation of the appeal books. Mr and Mrs Hall assisted with the preparation of those books in order to save costs. The books and index were not complete but near to completion at the time the six months period expired. The draft index to the appeal book was sent to the respondents on 10 July 2008, although it was not completed. By 18 July 2008 it was apparent to the Halls’ legal advisers that this matter would not be ready to set down for appeal by 21 July 2008.
The solicitors acting for the respondent parties were asked to certify the appeal books so that the appeal could be set down, notwithstanding the complexity and length of the appeal books and the relatively short time, only a matter of days, in which to do the necessary work required to certify them. When the difficulties of attending to the certification were pointed out, and on the day when the time for the setting down of the appeal expired, namely 21 July 2008, the Halls took out this application.
[3] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219 (Anderson J).
[4] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219 at [8]-[9].
In the course of the hearing, the Judge was referred to the decision of the High Court in Jackamurra v Krakouer,[5] and in particular to the following observations:
[5] Jackamurra v Krakouer (1998) 195 CLR 516 at [1]-[7] (Brennan CJ and McHugh J) (footnotes omitted).
The question in this appeal is whether the Full Court of the Supreme Court of Western Australia erred in refusing to extend the time for entering an appeal and, as a consequence of that refusal, in dismissing the appeal for want of prosecution. The decisive reason for the Full Court’s decision was that the appeal lacked “any real prospect of success”. On the way that the case was conducted, however, we think that the Full Court erred in relying on that ground.
The history of the case is set out in the judgments of Gummow and Hayne JJ and Kirby J. There is no need for us to repeat it. The transcript indicates that counsel for the appellant understood that he could show that the appellant had a case on the merits by referring to the reasons of Commissioner Dawes and by outlining the type of arguments that he intended to put before the Full Court on the hearing of the appeal. It does not seem to have occurred to him that the Full Court might reject the application for an extension of time by concluding that the appeal would fail because he had failed to refer to the passages in the evidence that supported his arguments. That is hardly surprising. The evidence was not before the Full Court. Counsel for the appellant was plainly under the impression that the success of his application for an extension of time did not depend upon proof of an evidentiary foundation for his arguments.
The understanding of counsel for the appellant as to how the Court would examine “the merits” was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:
“We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.”
These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question – should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court’s business would be prejudiced by granting the application.
In the Full Court, however, Malcolm CJ, with whose judgment Rowland and Franklyn JJ agreed, said:
“In such a case as the present, there are usually four main factors to be considered in exercising the Court’s discretion to extend time, namely, the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent.” (Our emphasis.)
Esther Investments Pty Ltd v Markalinga Pty Ltd, like the present case, was concerned with the failure to enter an appeal for hearing in accordance with O 63, r 7(1) of the Rules of the Supreme Court 1971 (WA). That sub-rule provides that “[u]nless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal”. Esther Investments, like the present case, was therefore concerned with a purely procedural application to extend time for doing an act in respect of an appeal already lodged. Yet the Full Court in Esther Investments approached the exercise of discretion as if it were dealing with an application to extend the time for lodging an appeal. Indeed, the four factors to which Malcolm CJ referred in this case come from the judgment of Kennedy J in Esther Investments which, as Kennedy J acknowledged, derived from the judgment of the English Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd. But Palata was concerned with an application to extend the time for lodging an appeal against a judgment determining the substantive rights of the parties.
Cases such as Palata are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant’s right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions.
The Court has had the opportunity to review the application for permission and the summary of argument filed in support of the proposed grounds of appeal. It is the view of the Court that questions of general principle may arise, and that it may be in the interests of justice to grant permission to appeal.[6]
[6] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3] (Doyle CJ, Nyland and Gray JJ); SA Government Financing Authority v Bank of New Zealand [2002] SASC 56 at [12]-[13] (Nyland, Martin, Gray JJ).
The Court has decided to refer the application for permission to appeal for hearing in court, and if it is considered appropriate to grant permission, an argument to hear the appeal will be heard instanter. Accordingly, the parties should be prepared to present their full argument on the hearing of the application for permission.
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