Hall v City of Burnside (No 6) - [2008] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HALL & ANOR v CITY OF BURNSIDE & ORS (No 6)
[2008] SASC 219
Judgment of The Honourable Justice Anderson
8 August 2008
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
DISCRETION TO EXTEND TIME TO SET DOWN APPEAL
Application for extension of time to set down appeal - application lodged six months after filing of notice of appeal - whether reasons for delay satisfactory - long history of litigation a relevant consideration - whether allowing extension would unduly prejudice defendants.
Held: Certainty of litigation in public interest - extension of time would unduly prejudice defendants - plaintiffs experienced litigants - plaintiffs aware of importance of time limits - reasons for delay unsatisfactory - application for extension refused.
Supreme Court Civil Rules 2006 r 295(2), referred to.
Hall & Hall v City of Burnside & Ors ( No 4) [2007] SASC 460; Jackamarra v Krakouer (1998) 195 CLR 516; Hall & Ors v City of Burnside & Ors [2006] SASC 283, discussed.

HALL & ANOR v CITY OF BURNSIDE & ORS (No 6)
[2008] SASC 219
Civil

ANDERSON J. In this matter, Mr and Mrs Hall have taken out an application for an extension of time to set down an appeal.
The appeal arises from a decision of Bleby J given on 21 December 2007: see Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460. At the time he delivered judgment, Bleby J extended the time for appealing from his decision to 21 January 2008. Mr and Mrs Hall filed their appeal on the last day, in accordance with the order of Bleby J.
The decision by Bleby J was in an action by the Halls for judicial review. His Honour summarises the history at [4] to [7] inclusive. Then at [8] to [23] the more recent history is set out by His Honour.
The claim before Bleby J was for a declaration and injunction based on the alleged invalidity of the development approval. The Halls sought equitable relief because they had been denied an extension of time by the decision of the Full Court: see Hall & Ors v City of Burnside & Ors [2006] SASC 283. In other words, by invoking the equitable jurisdiction of the court, the Halls hoped to avoid the time limits enforced by the Supreme Court Rules.
Bleby J found that the same reasons advanced by Doyle CJ in the Full Court decision applied to this application. His Honour said at [42]:
However, even without the decision of the Full Court refusing the extension of time, I consider that the reasons given by the Full Court for refusing to extend the time to commence proceedings under r 98 are equally applicable to the exercise of the Court’s discretion to refuse, on grounds of laches, this public law remedy in the circumstances of this case insofar as it is based on equitable relief. As Lord Diplock also pointed out in O’Reilly v Mackman there is no reason to leave the exercise of the discretion to the conclusion of the trial. Unless such an action can be struck out summarily at the outset as an abuse of the process of the Court, the whole purpose of the public policy behind the present r 98 would be defeated. (footnotes omitted)
Bleby J found that the claim for equitable relief was an abuse of process.
A hearing in relation to the costs of that application was set down for 7 February 2008. The decision on costs was delivered on 27 March 2008. Mr and Mrs Hall then lodged an appeal against the decision on costs, which they filed on 10 April 2008.
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.
Mr Hall filed an affidavit explaining his reasons for the delay between the time of filing the appeal and this present application. He spoke of the fact that he had a medical history of prostate cancer, that he and his wife were dealing with the costs application in the early part of the time after the appeal was lodged, and also their desire to attempt to negotiate some form of overall settlement with the other parties because of financial concerns over the extensive legal costs.
On the aspect of negotiation, I allowed Mr Swan, counsel for the Halls, to put before me further information if that could explain the significant delays in the six month period from 21 January 2008. Further affidavits were filed by both Mr Hall and by Mr Walker, the solicitor for City Apartments, on this aspect. In my view, that information does not satisfactorily explain either the lateness of the application to extend time, or the reasons for leaving the matter until the last minute.
What both affidavits and the attachments reveal is that the Halls were clinging to a somewhat forlorn hope of achieving some form of compromise thus reducing their liability for the substantial costs already incurred. There had been an earlier unsuccessful mediation from their point of view, and despite requests, they did not commit to any proposal of settlement in writing.
Mr Swan argued on the authority of the High Court decision of Jackamarra v Krakouer (1998) 195 CLR 516 that it was appropriate in a case such as this to adopt a more liberal and benign approach to an applicant seeking an extension of time when the appeal has been lodged within time.
In Jackamarra the High Court distinguishes between an extension of time in relation to the lodging of an appeal and a case such as this where there is a procedural aspect, namely, an extension of time required to set down the appeal for hearing.
The High Court in Jackamarra said at [4]:
... 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.
The High Court also said at [7]:
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. (footnotes omitted)
Both Mr Hayes QC for the City of Burnside and Mr Roder for City Apartments acknowledged that proposition, but pointed to the unusual circumstances of this case in relation to the very long and tortuous background of this matter through the various appeal processes. Mr Hayes and Mr Roder argued that it is impossible to decide this matter without reference to the background.
Mr Swan answered the point as to the long history of litigation in this matter, which includes three Full Court appeals and two unsuccessful attempts to obtain special leave from the High Court, by arguing that the building approval had been changed on several occasions, and yet again recently after the most recent decision of the Full Court. Mr Swan argued that the approval subsequent to the time when the matter was last before the Full Court was relevant and that Bleby J had erred in preventing an argument on this basis. He also argued that the reference by Bleby J to various statements made by the Full Court was wrong because the point at issue before him related to an approval given subsequent to the reasons of the Full Court.
The relevant background is set out in various exhibits to the affidavits which have been filed in previous proceedings, including the High Court. I was provided with a schedule of the relevant decisions leading up to this point of time. There have been eleven decisions in all, including the original planning consent, final development approval, judicial review proceedings and appeals relating to extensions of time.
Mr Hayes and Mr Roder argued that their clients have been severely prejudiced by the delays that have already taken place and by what could occur should this appeal proceed despite the fact that it has all but lapsed. It was argued that the justice of the case could not warrant an extension of time in this matter, even though it might be only a relatively short extension.
Mr and Mrs Hall are very experienced litigants and should have been aware for sometime of the importance of time limits in these matters. They have been party to decisions relating to time limits in which they have been unsuccessful. It was put to me that there is a public interest in requiring speedy finalisation for development approvals.
Mr Hall acknowledges in his affidavit of 28 July 2008 that he was aware of the requirements of the Supreme Court Rules as to time limits in setting down an appeal.
The original appeal against the planning consent was lodged by Mr and Mrs Hall in 2004 and their challenge to the development approval relates to an approval in March 2005. The development approval has been the subject of complaints by the Halls over the whole of that time, and specific challenges have been mounted to single judges of this Court, the Full Court of this Court and to the High Court of Australia. However, the essence of all complaints has been the suggested invalidity of the original approval relating to the earthworks. Those earthworks have long been completed and the dwelling now constructed.
In September 2006 the Full Court of this Court found, in the interests of justice, that it was not appropriate to extend the time to enable the Halls to challenge the validity of the development consent, which included, amongst other things, the earthworks. The Halls have maintained that the development is unlawful and structurally dangerous. They have had several judgments given against them on this aspect.
Before Bleby J the Halls sought to argue the same substantial matters but on the basis that the court should grant relief in its equitable jurisdiction as distinct from the previous judicial review process which had been employed. It was, however, just a different way of putting the same basic argument, again related to the suggested invalidity of the approval.
Doyle CJ in Hall & Ors v City of Burnside & Ors [2006] SASC 283 at [47], [49] and [51] makes it quite clear how important the time limits are to enable certainty in litigation. Although the remarks of His Honour were made in the context of the time limit for taking out proceedings for a judicial review, these comments are still relevant at this stage. Once again, the Halls are forced to seek the exercise of a discretion to enable them to proceed. The interests of the public in having certainty for these decisions is an important factor. It is also important for those relying on planning consents to be able to proceed with confidence once issues have been determined in their favour.
When the matter came on for hearing before Bleby J the building had reached a significant stage of construction. However, the roof was not complete and the exterior paving and some interior fittings had not been completed. I saw photographs of the work at that stage. Since that time I was informed by counsel that a further $130,000 had been expended on completing the house since the appeal in this matter was lodged. As Mr Roder pointed out, the fact is that the Halls have been able to monitor the progress of the house, as they live next door and they knew, or should have known, that any application seeking an extension of time to set down the appeal would be looked at from the point of view of any potential prejudice caused to the owners by the continued progress in the building. In my view, the step of roofing the house was prudent and sensible and there was really no other choice for the respondents. It was the only reasonable step they could take.
Mr Swan emphasised that there is no additional prejudice beyond that which the developer had control of, namely, completing the building. Mr Swan submitted that there was an appeal on foot from January this year and the respondents should have assumed that the appeal would proceed. The owners were entitled to act in a commonsense way to protect the house from rain damage It would not be reasonable for them to be expected to stop work in the face of all the decisions in their favour.
Whilst this appeal on its face may involve yet a further attempt to challenge a consent which has been challenged on previous occasions, it is not possible for me to determine this without going into the merits of the appeal. The High Court has warned against this approach. However, if this extension of time was allowed and the matter proceeded to the Full Court, the Full Court would be looking at the matter for the fourth time. It is important that challenges made to the validity of development consents are made and processed promptly. When one considers the history of this matter and the warning that the Halls received from the decision of the Full Court regarding the importance of time limits, it is necessary to seek a convincing explanation for the reason for this application to extend time.
Bleby J found that the attempt by the Halls to re-litigate the matter in front of him was an abuse of process. In any event, because the declaration sought involved discretionary considerations, His Honour indicated that he would not have exercised his discretion in favour of the Halls for the same reasons as expressed by the Full Court. It must be said, without attempting to pre-judge the matter, that having regard to the history of the matter, the Halls would face a difficult if not insurmountable task in the Full Court overturning the discretionary considerations of Bleby J.
Putting aside the background of the Halls’ attempts to re-litigate matters which have been finally decided by both the Full Court and the High Court, the exercise of my discretion comes down to determining whether there are any satisfactory reasons given for the delay which has necessitated the last-minute application for the extension of time, weighed against any prejudice which would occur should the extension be granted. There is a clear prejudice to the respondents if further delays are allowed. They are now entitled to some certainty in relation to the appeal process.
I have already summarised the reasons which Mr Hall gave for the lateness of the appeal books and the index. I think the most important aspect of the exercise of discretion is the prejudice that would be suffered by the respondents should this extension be allowed. I regard the reasons given by Mr Hall as unsatisfactory. The Halls knew the importance of the time limits because of the previous judgment of the Full Court.
In the public interest, and in the interests of justice and to provide certainty in relation to matters of planning decisions made a long time ago, it is my view that the discretionary factors are in favour of dismissing the application. I therefore refuse the application for the extension of time in which to set the appeal down.