Hall v Carney
[2021] SASCA 41
•15 January 2021
Supreme Court of South Australia
(Court of Appeal: Civil)
HALL v CARNEY & ORS
[2021] SASCA 41
Judgment of the Honourable Justice Livesey (ex tempore)
15 January 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - EXTENSION OF TIME
By an interlocutory application dated 17 December 2020, the applicant seeks an extension of the times specified by the Uniform Civil Rules 2020 (SA) for the filing of the documents and appeal book required in connection with the appeal that he commenced on 19 November 2020 against an order barring him from pursuing notified claims pursuant to s 29(2) of the Trustee Act 1936 (SA). Those claims concern the applicant's mother's estate.
The application was not made until these various appeal materials were due. By his application, the applicant seeks an extension until at least one month after the trial in "the District Court Case 1369 of 2017", set down in the week beginning 8 February 2021.
Held, granting an extension of time, more limited than that which was sought:
1. The applicant’s obligation to file a list of authorities and a chronology is suspended until further order.
2. The respondents will prepare, file and serve a core appeal book.
3. The applicant is granted an extension of time until 29 January 2021 to prepare, file and serve his outline of argument.
HALL v CARNEY & ORS
[2021] SASCA 41
Court of Appeal – Civil
Livesey JA:
By an interlocutory application dated 17 December 2020, the applicant seeks an extension of the times specified by the Uniform Civil Rules 2020 (SA) for the filing of the documents and appeal book required in connection with the appeal that he commenced on 19 November 2020 against an order barring him from pursuing notified claims pursuant to s 29(2) of the Trustee Act 1936 (SA).[1] Those claims concern the applicant's mother's estate.
[1] See Hall v Carney (No3) (2020) SASC 177 (Stanley J).
The application was not made until these various appeal materials were due. By his application, the applicant seeks an extension until at least one month after the trial in “the District Court Case 1369 of 2017”, set down in the week beginning 8 February 2021. The applicant asks that the costs of the application be paid out of his mother's estate.
The applicant gives as his primary reasons for needing an extension of time the fact that he is concurrently involved in two sets of complex litigation and that he suffers from chronic ill-health that limits his capacity to work other than part‑time on this litigation.
Whilst the Court is not unsympathetic to the effects of the applicant's treatment for his prostate cancer, presently in remission, it must be said that, first, he has been experiencing these effects for some years and, secondly, there is no medical evidence in the last six months or so regarding the applicant's condition. It may or may not have stayed the same, it may or may not have worsened. Thirdly, and most importantly, the applicant has commenced the appeal well knowing his condition and its limitations.
I should also point out that the applicant is – as I understand it – the plaintiff in the District Court proceedings.
Whilst I expect that the District Court proceedings will demand some of the applicant's time, particularly close to the commencement of the trial, he has the assistance of his wife and solicitors and counsel. Further, those proceedings concern the allegation that there exists an oral agreement which the applicant alleges was made with another party concerning an obligation to share the payment of the costs of earlier litigation. On my understanding of that litigation, discovery has been made by each side and the preparation for the trial ought be well advanced.
The applicant, however, no longer has the assistance of solicitors and counsel in connection with these proceedings. A retainer came to an end reasonably recently. When I inquired whether Mr Hall wished to have a short adjournment to brief new solicitors and counsel, he declined. The applicant explained that he thought it both impractical and unlikely to assist as he does not have any real confidence that many lawyers would be able to digest and understand the complexities of this case.
When I inquired about the applicant's present state of preparation the impression I gained – and this may not be accurate – is that very little has been done. For example, the applicant explained that he had not yet started to write his outline of submissions, and he had not commenced on his list of authorities, his chronology or the core appeal book. Rather, the applicant has been occupied looking at documents in a number of boxes relating to issues which were either not argued or which are not clearly set out in the existing notice of appeal and which may require a further amendment to the grounds of appeal. The initial notice of appeal, with attached grounds of appeal dated 19 November 2020, was amended on 24 November 2020.
I must say that I am very concerned that the applicant has not yet started writing his outline of argument in the nearly two months since this appeal commenced in November.
Mr Edmonds-Wilson QC, counsel for the respondents, indicated that his client was not too concerned about the form of the grounds of appeal. He does, however, wish to see the applicant's outline. To be fair, the respondents’ primary position is that no extension at all should be granted and that the applicant has had sufficient time over the years to advance his arguments. Indeed, the respondents’ position is that consideration should be given to striking out the appeal.
Nevertheless, the respondents are willing to prepare the core appeal book and discuss preparation of the exhibit appeal book once the outlines of the parties have been exchanged.
In context, it seems to me that the list of authorities and any chronology that the applicant chooses to file are of much less importance at the moment and may be deferred.
The impression I gained from the applicant was that he expected to prepare all of the documents and the core appeal book in the month following the District Court trial. That is to say, during February 2021.
Having reflected on the submissions of the parties I am prepared to give the applicant some further time. However, I am certainly not prepared to put this appeal on hold for another two months as, effectively, the applicant's application requires. That is particularly so in circumstances where the applicant has not progressed this appeal very far in the period of around two months since the appeal was commenced.
I am very conscious that the gravamen of the barring order made by Stanley J was concerned with the inequities caused by the applicant's long delays, and it is the applicant who is the party prosecuting this appeal.
In all of these circumstances the orders of the court are:
1.The applicant's obligation to file a list of authorities and a chronology is suspended until further order.
2.The respondents will prepare, file and serve a core appeal book on or before 4 p.m. on 29 January 2021.
3.The applicant will prepare, file and serve his outline of argument on or before 4 p.m. on 29 January 2021.
4.The parties have liberty to apply in writing to my chambers.
5.The respondent's costs of preparing the core appeal books will be costs in the cause.
6.The respondent's costs of today must be met by the applicant.
7.This matter is adjourned for further directions on Thursday, 11 February 2021 at 9.30 a.m.