Hall v Carney (No 2)

[2021] SASCA 42

Supreme Court of South Australia

(Court of Appeal: Civil)

HALL v CARNEY & ORS (No 2)

[2021] SASCA 42

Judgment of the Honourable Justice Livesey  (ex tempore)

31 March 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

By an interlocutory application dated 23 March 2021 the applicant seeks an extension of time for the filing of various documents and an adjournment of the appeal listed for hearing on 8 April 2021. The appeal was commenced on 19 November 2020 against an order barring the applicant from pursuing notified claims pursuant to s 29(2) of the Trustee Act 1936 (SA). Those claims concern his mother’s estate.

This is the second application to delay the progress of the appeal.  Following the earlier application in January 2021, the applicant was given an extension of time.  This application was made just over two weeks before the hearing of the appeal.  The applicant seeks an adjournment until at least one month after the final day of the trial in District Court Action No 1369 of 2017, scheduled for 9 April 2021. 

Held per Livesey JA, dismissing the application with costs:

1.      The applicant has had considerable time, and a fair and just opportunity, to prepare his appeal.

2.      The interests of justice extend beyond the applicant’s preferred time allocation, and include         the interests of other litigants and the need for the Court to avoid undue delay in the hearing       and determination of appeals.

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175; Bhamjee v Forsdick [2004] 1 WLR 88; Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364; Sali v SPC Ltd (1993) 116 ALR 625; UBS AG v Tyne (2018) 265 CLR 77, discussed.

HALL v CARNEY & ORS (No 2)

[2021] SASCA 42

Court of Appeal – Civil

LIVESEY JA:

1. By an interlocutory application dated 23 March 2021 the applicant seeks an extension of time for the filing of various documents and an adjournment of the appeal listed for hearing on Thursday, 8 April 2021. The application was made just over two weeks before the hearing of the appeal. The interlocutory application is supported by an affidavit affirmed by the applicant on 23 March 2021.

2. The applicant seeks a deferral until at least one month after the final day of the hearing of the trial in District Court Action No 1369 of 2017.  The final day of that trial is scheduled for 9 April 2021.  The trial is otherwise completed and I am told that on that day closing addresses will be presented by counsel for the parties.

3. This is the second attempt by the applicant to delay the progress of 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) concerning his mother's estate.[1]

   [1]  Hall v Carney [2021] SASC 8.

4. The applicant seeks a delay in the hearing of the appeal on essentially two grounds.  First, that he is concurrently involved in the District Court proceedings and, second, that he is labouring under chronic and serious ill health.  The applicant explains that the District Court proceedings did not finish in the time expected, and that there has been considerable additional work required of him beyond the work that he expected at the time of the earlier application heard by me during January this year.  The applicant explains that this work has been required of him notwithstanding the assistance of his wife, and solicitors and counsel briefed in those proceedings.  He explains that he has had difficulty getting sleep and working other than part-time.

5. The applicant relies on an updated medical report from his doctor dated 18 March 2021.  That report explains that the applicant has difficulties with fatigue, concentration and headaches.  As Dr Bode explains, these “significantly” impact the applicant's “ability to focus and ... deal with legal issues”.  The applicant's doctor goes on to say that the applicant requires time to focus on his health and his “legal distractions ... significantly impede his ability to focus on his increasing health issues”.  In the opinion of Dr Bode, the applicant requires three to six months to urgently deal with his medical issues.

6. As I read this report, the sooner the applicant can be freed of this and other litigation, the better.  Not only does the applicant's doctor not say that an adjournment of the appeal would be beneficial to the applicant, he does not say that the applicant has been wholly unable to work on the preparation of his appeal.

7. A significant feature of the applicant's affidavit evidence is that little detail is given regarding the time and work he has devoted to the preparation of his appeal.  Nonetheless, from paragraph 7 of the applicant's affidavit he describes having spent “a considerable amount of time seeking legal advice and also personally researching the law”.  And he goes on to describe having devoted a “large amount of effort” in relation to his appeal.

8. It must be recalled that the applicant declined the offer of an adjournment in January so as to enable him to brief new solicitors and counsel for the appeal.  It must also be recalled that the applicant commenced this appeal well-knowing that he was a plaintiff in the District Court proceedings and that his work on the appeal would be impeded by his chronic ill-health.

9. Though the applicant told me today that he has not spent as much time as he would like on his appeal, he does not suggest that he has spent no time on the preparation of his appeal.  The thrust of his submission is that he would like the adjournment so that he can spend more time on the preparation of his appeal.

10. For the respondent, Mr Edmonds-Wilson QC emphasised that the applicant has essentially made two choices about the conduct of this appeal.  The first is that the applicant determined to dispense with the services of his existing lawyers, and associated with that, to proceed with the appeal unrepresented.  The second choice is that the applicant seems to have decided to devote considerable time to his District Court proceeding. 

11. The applicant proposes, certainly on what I heard from him today, to spend very considerable time reading all of the transcript of the District Court trial so that he can provide what he described today as “informed instructions” to his lawyers in connection with the closing address.  Just why it is necessary for the applicant to spend that time given the involvement of his wife, and solicitors and counsel briefed in those proceedings, is difficult to comprehend.

12. The applicant responds to Mr Edmonds-Wilson QC, in effect, by saying that in order to “achieve justice”, it is necessary for him to spend time on the District Court proceedings and that he will be “denied justice” if he is not able to spend the time he wishes on his appeal.  He goes on to point out that there are other matters, such as issues concerning his house and medical matters, which are also making demands upon his time.

13. In essence, the applicant says that he will be “denied justice” if he cannot spend the time that he wishes to spend on both the District Court proceedings and his appeal.  He goes so far as to suggest that the Court will be “prejudging the issue” if the Court disagrees with the applicant's assessment of the required time allocations.

14. For a number of weeks now, this appeal has been listed for a hearing on Thursday, 8 April.  That hearing will take place after the Easter long-weekend. If it is adjourned it cannot be relisted until August.  The applicant has not complied with the timeframes set by the Uniform Civil Rules 2020 (SA) or the orders of this Court.  The core appeal book and the exhibit book have both been filed by the first and third respondents and, as expected, they have filed their written submissions. The appellant is yet to file his written submissions.  He is concerned about whether he will have time to prepare a chronology. I am not too troubled about that, as the applicant has made it clear that the matters that would be relevant to that chronology can be found in the three volumes of the exhibit book, as well as in the court record, which are available to the Court and to the parties.

15. There was some debate during the argument this morning about “justice” and what the applicant contends he requires for the just hearing of his appeal.  It is helpful to repeat what Lord Phillips MR explained in Bhamjee v Forsdick:[2]

    [a] court’s overriding objective is to deal with cases justly.  This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases).

    [2]     Bhamjee v Forsdick [2004] 1 WLR 88, [15].

16. Indeed, in Dawson v Deputy Commissioner of Taxation King CJ acknowledged that the Court has:[3]

    … [a] responsibility to ensure, so far as possible and subject to overriding considerations of justice, that the limited resources which the state commits to the administration of justice are not wasted by the failure of parties to adhere to dates of which they have had proper notice.

    [3]     Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364, 366.

17. In Sali v SPC Ltd, Brennan, Deane and McHugh JJ explained:[4]

    [W]hat might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

    [4]     Sali v SPC Ltd (1993) 116 ALR 625, 629.

18. And, as French CJ explained in Aon Risk Services Australia v Australian National University:[5]

    The Judicature Act Rules and their Australian offspring did not in terms make reference to the public interest in the expeditious dispatch of the business of the courts.  The way in which proceedings progress has been left to the parties.  This may be seen as an aspect of the adversarial system which is a dominant part of the common law inheritance of Judicature Act procedure.  In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of the costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources. 

    (footnotes omitted)

    [5]     Aon Risk Services Australia v Australian National University (2009) 239 CLR 175, [23].

19. French CJ went on to explain that the discretions exercised by the Court are exercised:[6]

    … in the context of the common law adversarial system as qualified by changing practice.  But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law.  To that extent, its avoidance, based upon a proper regard for the interests of the parties, transcends those interests.

    [6]     Aon Risk Services Australia v Australian National University (2009) 239 CLR 174, [24].

20. It seems to me that the applicant in this case has had considerable time to prepare his written submissions.  If he has not progressed those as far as he would have liked, that is the product of a decision he has made about the time he will spend on his appeal, as distinct from the time he has chosen to spend on his District Court proceedings.  No doubt, in the applicant’s position, meeting those competing demands is difficult. But these are choices that litigants must make in circumstances such as these.  The interests of justice extend beyond the applicant’s preferred time allocation, and include the interests of other litigants and the need for this Court to avoid undue delay in the hearing and determination of appeals.  A relisting of this appeal will affect other litigants who could have been heard in April, or who may be deprived of a hearing in August.  The applicant has had a fair and just opportunity to prepare his appeal.[7]

    [7]     UBS AG v Tyne (2018) 265 CLR 77, [38] (Kiefel CJ, Bell and Keane JJ).

21. Mr Hall will in any event, on Thursday, 8 April 2021, have ample opportunity to present his case to the Court of Appeal and, if he wishes, there will potentially be an opportunity to supplement his oral presentation with written submissions to which the respondents will be given an opportunity to respond in writing.

22. In all of these circumstances, particularly bearing in mind the further time given to the applicant in January this year, I am not prepared to adjourn this appeal or to otherwise make the orders sought in the interlocutory application. 

23. Accordingly, the order of the court is that the application is dismissed.  The applicant must pay the respondent’s costs of the application.