Hamilton v Russell Kennedy
[2010] VSC 1
•3 FEBRUARY 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 5109 of 2009
| ALAN AVERELL HAMILTON | Plaintiff |
| v | |
| RUSSELL KENNEDY AND OTHERS | Defendants |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 NOVEMBER 2009 | |
DATE OF JUDGMENT: | 3 FEBRUARY 2010 | |
CASE MAY BE CITED AS: | HAMILTON v RUSSELL KENNEDY | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 1 | |
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Practice and Procedure – Appeal from Associate Justice – Extension of time for appeal – Relevant factors to consider – Victorian Civil and Administrative Tribunal Act 1998, ss.112, 140, 141, 148 – Supreme Court (General Civil Procedure) Rules 2005, O 77.06.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Mr A.F. Hamlyn-Harris | Russell Kennedy |
| For the Second Defendant | No appearance | |
| For the Third Defendant | In person |
HIS HONOUR:
Introduction
By a notice of appeal dated 26 October 2009 the plaintiff, Alan Averell Hamilton, appealed against the order of Lansdowne AsJ, made on 24 March 2009, dismissing his originating motion issued on 3 March 2009 and ordering him to pay the first defendant’s costs of the proceeding. Her Honour dismissed the originating motion because she refused to extend the times within which the plaintiff could appeal against two orders made by the Victorian Civil and Administrative Tribunal (“VCAT”) on 14 February and 18 December 2008 respectively. The plaintiff understood that his appeal against the order of Lansdowne AsJ was also out of time as, by an email dated 30 October 2009, he advised the first defendant, the firm of solicitors Russell Kennedy, that:
It is well appreciated that the first issue to be addressed is my application for an extension of time for making an appeal against the ruling of 24/3/09.
In my opinion, for the reasons set out below, there should be no extension of time and accordingly the plaintiff’s appeal against the order of Lansdowne AsJ should be dismissed.
The Factual Background
In order to appreciate the full context of the application to extend the time for appealing against the order of Lansdowne AsJ, it is necessary to go back to October 2006, when the plaintiff engaged Russell Kennedy to act in a dispute between his mother and her neighbours over a wall constructed by the neighbours in breach of a previous agreement made by them settling a Supreme Court proceeding. A costs agreement was entered into by the plaintiff with Russell Kennedy. In October 2005 the plaintiff and his brother, Julian Rohan Hamilton, the third defendant in the proceeding, had been appointed joint financial administrators of their elderly mother’s affairs. Despite the third defendant being a barrister it appears that it was the plaintiff who dealt principally, but not exclusively, with the solicitors.
On 18 January 2007 the plaintiff terminated Russell Kennedy’s retainer after receiving an itemised bill in the sum of $17,133.16 on 9 January 2007. Tax invoices had previously been sent by Russell Kennedy on 27 October, 30 November and 21 December 2006. The plaintiff disputed the quantum of Russell Kennedy’s bill. It was said by the plaintiff that the bill was excessive because a lower figure had been quoted for a lot more work, such as obtaining a Supreme Court injunction, which had not been performed. Secondly, the plaintiff maintained that the bill was excessive because all that needed to be done was to write a few letters, the cost of which should have been not more than $1,000.
The plaintiff made a complaint to the Legal Services Commissioner. Following an unsuccessful mediation in April 2007, the dispute was referred to VCAT. By a letter dated 8 October 2007 addressed to “Ms Beryl Hamilton, c/- Alan Hamilton”, Russell Kennedy enclosed:
an Offer of Compromise pursuant to Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998 and in particular, sections 113, 114 and 115 of that Act.
The Offer of Compromise was that Russell Kennedy would accept payment of the sum of $10,000 within 14 days of the date of acceptance of the offer in settlement of its claim. The offer was open for acceptance until 22 October 2007. As well as the Offer of Compromise, copies of ss.113, 114 and 115 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) were enclosed with the letter. The Offer of Compromise was not accepted.
At the commencement of the hearing at VCAT before Senior Member Howell, Mr Rohan Hamilton was joined as the second applicant, on his own application. Also, counsel for Russell Kennedy made an open offer to accept $11,000 in settlement of its claim, which again was not accepted. The hearing lasted for three days. At the conclusion of the hearing, on 14 February 2008, the Senior Member gave oral reasons for his decision and made orders, including orders that the applicants, Mr Alan Hamilton and Mr Rohan Hamilton, pay $16,723.96 plus interest of $2,125.37 to Russell Kennedy (“the second and third orders”) and that Mr Alan Hamilton pay Russell Kennedy’s “costs of these proceedings incurred after 8 October 2007, calculated on County Court Scale ‘B’ on a party/party basis” (“the fifth order”). Thus, only a conceded amount of $409.20 was taxed off Russell Kennedy’s bill. The Senior Member found that “a large amount of the work was necessary only because of the equivocal instructions given by Mr Alan Hamilton, and the conflicting instructions given by Mr Alan Hamilton and Mr Rohan Hamilton respectively”. He concluded that “Russell Kennedy did not carry out unnecessary work, and that no degree of over-servicing took place”.
The costs order was made pursuant to s.112 of the VCAT Act as the outcome was more favourable to Russell Kennedy than the rejected Offer of Compromise. One of the complaints made by the plaintiff was that Russell Kennedy had misled his mother by not referring to s.112 in its letter. However, both the letter and the offer did state that the offer was made pursuant to Division 8 Part 4 of the VCAT Act, which includes s.112. The offer was also said to be made pursuant to “the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 323 and Cutts v Head [1984] 1 All ER 597“.
On 25 February 2008 VCAT posted a copy of the Senior Member’s order and his written reasons to Mr Alan Hamilton, Mr Rohan Hamilton, Russell Kennedy, the Legal Services Commissioner and the Law Institute of Victoria. In his affidavit sworn on 2 March 2009, (“the plaintiff’s first affidavit”) the plaintiff deposed that he did not receive a copy of these documents. He said that he only discovered them on the internet in November 2008, when he realised some written order was being referred to by his brother. In fact, the Senior Member’s order of 14 February 2008 and his reasons for his decision had been placed on the internet on 3 March 2008.
Pursuant to s.148(2) and (4), s.140(1)(a)(ii) and s.141(1)(b) of the VCAT Act, the applicants had until 27 March 2008 within which to appeal “on a question of law” to the Supreme Court. Alternatively, it may be that the applicants only had until 14 March 2008 within which to appeal because neither requested written reasons. On the contrary, according to the transcript each of Mr Alan Hamilton and Mr Rohan Hamilton told the Senior Member at the conclusion of his oral reasons on liability that he did not seek written reasons. Perhaps the subsequent cost argument and ruling caused the Senior Member to provide written reasons of his own accord. Whatever the reason, it is unnecessary to decide the precise date for appealing because no such appeal was brought by Mr Alan Hamilton until this proceeding was issued on 3 March 2009, many months after either of the above dates. Part of the relief sought in this proceeding was that the Senior Member’s fifth order of 14 February 2008 either be struck out or amended “to state that both the first and second named applicants are jointly to pay the respondent’s costs, rather than the first applicant alone”, and that the second and third orders of 14 February 2008 be struck out and that “VCAT schedule a rehearing of the cost dispute associated with the initial bill of $17,133 and [sic] as was presented by Russell-Kennedy [sic] on 9 January 2007”.
In the plaintiff’s first affidavit, he was very critical of the Senior Member’s decision. He said that in his opinion the hearing “involved several serious flaws and irregularities and was highly unfair to us”, and that he believed that “the written order involves grievous faults in law, and the associated discussion contains misleading statements and very unfair misinterpretations of my motivations”. He continued:
Had I received the written order of 14th February 08, I would have protested immediately to VCAT. Had VCAT’s response been unsatisfactory, I think I would have promptly appealed to the Supreme Court.
The plaintiff further said that his brother did not wish to appeal to the Supreme Court and that “despite the plentiful irregularities and unfairness of the cost hearing”, he decided “not to alone appeal to the Supreme Court if RK [Russell Kennedy] was not going to pursue a further bill”. This last comment was based on an assertion by the plaintiff that the Senior Member had said at the conclusion of the hearing that Russell Kennedy’s bill for the costs of the hearing “should be presented within 10 days of the hearing concluding”. The assertion that a ten day limit was imposed was disputed by Russell Kennedy and it was not borne out by the transcript of the hearing. On the contrary, it was suggested by Russell Kennedy’s counsel that there could be a delay of about two months before a costs consultant could assess the file. Nevertheless, the plaintiff deposed that when the ten days elapsed without Russell Kennedy presenting its bill, he “assumed that RK had decided to forgo further action”. He continued:
Hence I let pass the 28 days normally allowed for appeal against the conduct and outcome of the February 2008 hearing.
Despite these claims, when on 12 June 2008, Russell Kennedy’s bill for the three day hearing in February in the sum of $19,274 was presented to Mr Alan Hamilton seeking payment “within 10 days of the date of this letter”, he simply replied to Russell Kennedy that the additional bill again seemed “very excessive” and was again unacceptable. Mr Alan Hamilton also sought time to have the bill “reviewed by a legal costing expert” and to obtain “legal advice as to the appropriate course of action”. No agreement having been reached, a taxation hearing was accordingly scheduled for 18 December 2008. On 24 October 2008, Mr Alan Hamilton wrote to the Registrar of VCAT asking that an alternative member be appointed to conduct the taxation of Russell Kennedy’s bill. On 19 November 2008, Mr Alan Hamilton sent a facsimile to the President of VCAT suggesting that the taxation not proceed because the Senior Member’s reasons for invoking s.112 of the VCAT Act were incorrect. On 8 December 2008, Mr Alan Hamilton again emailed the President of VCAT complaining about the absence of a response to his earlier communication and seeking his consideration of whether the scheduled taxation should proceed. Despite all of these developments and the lack of response from VCAT, Mr Alan Hamilton still did not seek to appeal, out of time, the orders made by the Senior Member on 14 February 2008.
Instead, on 18 December 2008, Senior Member Howell conducted a taxation of Russell Kennedy’s bill in respect of the three day hearing. Mr Alan Hamilton and Mr John White, Russell Kennedy’s costs consultant, appeared. At the conclusion of the hearing, Mr White told the Senior Member that he believed that Russell Kennedy’s bill had been assessed and allowed at the sum of $8,687, but he also said that he would need to check that figure as his “arithmetic might be faulty”. It was. In fact, after deducting the items taxed off by the Senior Member and adding the items taxed on, the correct figure was $13,398.70. Later on the same day, 18 December 2008, Mr White emailed Mr Howell and Mr Alan Hamilton pointing out his error and setting out how the correct amount of $13,398.70 was calculated. By an email also sent on the same day Russell Kennedy advised Mr Alan Hamilton that the Senior Member’s order required payment of the sum of $13,398.70 by 30 January 2009. This elicited a very abusive and offensive email from Mr Alan Hamilton.
At the hearing, on 18 December 2008, Mr Alan Hamilton had also submitted that his brother should be jointly liable for the costs because he had successfully applied to be joined as an applicant in the costs dispute and because his interventions and instructions to Russell Kennedy “had generated most of the confusion that provided the opportunity (if not the justification) for RK’s initial bill of $17,133”. According to Mr Alan Hamilton, the Senior Member said that “he had initially left the bill(s)” in Mr Alan Hamilton’s name because he was “the joint-financial-administrator who had signed the letter appointing RK to act for our mother”. This was said to be contrary to a statement by the Senior Member at the conclusion of the February hearing that “it was convenient to leave the bill for the dispute entirely” in Mr Alan Hamilton’s name and that “the bill(s) would doubtless be paid by … [the] mother’s estate”. In fact, what the transcript records the Senior Member saying to Mr Rohan Hamilton is that the order was only sought against Mr Alan Hamilton:
because he was the only party to the proceedings when the offer was made. But, I appreciate in the long run, it may well come out of your mother’s estate.
(Mr Alan Hamilton asserted that it was only after his mother’s death in July 2008 that his brother began “to suggest that he had no liability for any additional bill”.)
After the taxation hearing had finished and immediately before receiving Mr White’s email referred to above, Mr Alan Hamilton sent an email to Senior Member Howell complaining about his decision that day “to leave the liability for costs, as determined from today’s costs hearing, solely in my name, rather than in both my own and my brother’s joint names”. He pointed out that when he signed the letter appointing Russell Kennedy he was acting in the capacity of a joint financial administrator with his brother. On 22 December 2008 Mr Alan Hamilton sent another email to the Senior Member objecting to any increase from $8,687 for the amount of costs which he had been ordered to be paid.
On 22 December 2008 VCAT posted a copy of the Senior Member’s order to Mr Alan Hamilton, Mr Rohan Hamilton, Russell Kennedy, the Legal Services Commissioner and the Law Institute of Victoria. Again, according to his first affidavit, Mr Alan Hamilton did not receive a copy of the order.
On 16 January 2009, Mr Alan Hamilton rang VCAT to ask when the order of 18 December 2008 would be finalised. He said that he was told that a draft had been prepared but would not be signed until the Senior Member returned from leave. On 30 January 2009, the taxed costs were due to be paid. On 5 February 2009, Mr Alan Hamilton received what he described as “a purported copy” of the Senior Member’s order from Russell Kennedy. On 6 February 2009, Mr Alan Hamilton sent an urgent facsimile to Mr Howell seeking, in part, an extension of time within which to appeal his order of 18 December 2008.
Any appeal from the taxation had to be brought by 15 January 2009. Again, there was no such appeal by Mr Alan Hamilton until this proceeding was issued on 3 March 2009. Part of the relief sought in this proceeding was that the Senior Member’s orders of 18 December 2008 be struck out or be amended “to require a total payment of $8,867 rather than the $13,398.70 specified” and “to state that both the first and second named applicants are jointly to pay the respondent’s costs, rather than the first applicant alone”.
As previously stated, Lansdowne AsJ’s order was made on 24 March 2009 following her Honour giving oral extempore reasons. Pursuant to rule 77.06(4) of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”), the notice of appeal should have been filed within five days of that order. In his affidavit sworn on 30 October 2009 (“the plaintiff’s second affidavit”), the plaintiff said that there were “a number of reasons why this appeal is so far out of time”. He drew attention to the order of Lansdowne AsJ, which had been authenticated on 2 April 2009, where it was stated in Other Matters that:
The application for leave to appeal in respect of each order is refused on the basis that it is out of time and, were application for extension of time to be made, such extension is not warranted.
The plaintiff said in his second affidavit that on 8 April and 21 May 2009 he wrote to Lansdowne AsJ requesting reasons for the statement that an extension of time was not warranted.
The plaintiff said that the only response was that on 13 July 2009 he was sent a copy of “the transcript” of her Honour’s reasons with an apology for the delay “due to difficulties in transcription”. He seemed not to understand that this was not a fresh judgment but the revised version of the extempore judgment delivered by her Honour on 24 March 2009. The plaintiff believed that there had been misunderstandings on the part of her Honour and accordingly on 24 July 2009 he again wrote to the Associate Justice re-arguing his case. Despite the plaintiff saying in the hearing before me that one of the reasons for the delay in appealing was that he was waiting for her Honour’s written reasons, no appeal was brought within five days of the reasons being received.
The plaintiff deposed in his second affidavit that he presumed his case was being re-considered when he received a letter dated 7 September 2009 from Lansdowne AsJ “seeking clarification of a matter supposedly related to my case, but actually associated with a separate case” initiated by his brother. On 15 September 2009, he replied “indicating the misunderstanding” and explaining why his case “deserved re-consideration”. On 21 September 2009, the plaintiff sent to Lansdowne AsJ an itemised list of objections to the affidavit of Robert Anthony Ewing sworn on 23 March 2009 in opposition to the plaintiff’s application for leave to appeal from the VCAT decisions.
By an email dated 22 September 2009, her Honour’s associate wrote to the plaintiff pointing out that the Associate Justice had given her decision and that it was inappropriate to send any further correspondence. No appeal was brought in response to this confirmation that her Honour’s decision was final.
In the meantime, on 11 September 2009, Wood AsJ undertook the taxation of the costs ordered to be paid by Lansdowne AsJ. They were taxed and allowed in the sum of $17,752.60. There was no suggestion by the plaintiff at this hearing that an appeal was being contemplated. In fact, in the hearing before me the plaintiff said that he did not seek to appeal prior to that hearing because he “felt much depended on the outcome of the taxation hearing”. He later explained that if Wood AsJ had “awarded a very small amount which I thought was justified, I don’t think I would have bothered with appealing”. On 15 September 2009, an authenticated copy of the order of Wood AsJ was served on the plaintiff. On 21 September 2009, the plaintiff sought a review of the costs awarded to Russell Kennedy at the taxation. The plaintiff said in the hearing before me that he did not appeal at this time because he “was still considering what to do” and he “wanted to see what would happen” with this review. On 29 September 2009, the parties were notified that the review was listed for a callover on 20 October 2009. In his second affidavit, the plaintiff said that he thought the re-hearing of the initial application “might” be raised at the callover. It was not. Instead, it was ordered on 20 October 2009 that the taxation review would proceed, without a further hearing, once Russell Kennedy’s submissions were received. The plaintiff said in his second affidavit that it was “only after the callover” that it “became clear” that he “needed to formally appeal”. Hence, the notice of appeal filed and served on 26 October 2009.
Consideration of the Issues
The Court has a discretion, under rule 77.06(6) of the Rules whether or not to extend the time for appeal. This question was treated by the parties as being governed by four factors. The first factor was the delay in seeking to appeal against the order of Lansdowne AsJ. The delay in this case was very long – nearly seven months. As Mr Hamlyn-Harris of counsel for the first defendant submitted, this was not a case of a party only being “a little bit out of time”. This factor, therefore, weighs against any extension of time.
The second factor was the reason for the delay. Given that the plaintiff had failed before Lansdowne AsJ because her Honour refused to extend the time within which he could appeal against the VCAT orders, one would have thought that he would have been very careful to comply with any time limits in his Supreme Court proceeding. However, this was not the case. As set out above, the plaintiff said that he initially delayed until he received the Associate Justice’s written reasons. But even then he did not appeal. In any event, there was really no need for him to wait for her Honour’s written reasons. He had been in Court when she had given her extempore judgment and should have understood why he had lost. Further, an appeal from an Associate Justice is, pursuant to rule 77.06(7) of the Rules, a re-hearing de novo so it was not necessary to state any grounds of appeal, for which the written reasons would have been of assistance. All the plaintiff had to do was to file and serve a notice of appeal seeking to have her Honour’s dismissal overturned.
More importantly, the reason for the subsequent delay was frankly conceded by the plaintiff. He was waiting to see what eventuated in the taxation of the costs of the hearing before the Associate Justice. In my opinion, it is simply not open to a litigant to delay appealing until the outcome of a subsequent event, such as the taxation of the costs, is known. Either the litigant wants to appeal against the order made or he does not. In my opinion, therefore, this factor weighs heavily against any extension of time.
A third factor was prejudice to the other party. It will be obvious from the above review of the background to this application that Russell Kennedy has been put to further costs and expense in carrying out steps which may not have been necessary had the plaintiff appealed within the time set out in the Rules. First, Mr White has prepared a bill in taxable form, then there was the taxation on 11 September 2009, the callover on 20 October 2009 and the preparation of the submissions relating to the review. Mr Ewing deposed in his affidavit sworn on 13 November 2009 that Mr White’s fees, not including the costs of preparing the submissions of the taxation review, were $2,546.50 and that Russell Kennedy’s “own professional costs for time spent to date in relation to pursuing its entitlements under her Honour’s costs order, also including out of pocket disbursements such as issuing fees, are in the vicinity of $4,000.00”, with further work to be done in respect of the taxation review.
Even if the plaintiff was ordered to pay all of the costs thrown away, there would still be the prejudice to Russell Kennedy of continuing to meet claims which should have been finally determined months ago. As was said by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University:[1]
The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment.
This view applies equally, in my opinion, to applications for extensions of time within which to appeal. It is very much in the interests of justice that there be some finalisation in litigation and that proceedings are not allowed to drag on indefinitely.[2]
[1][2009] HCA 27, [99]. See also [5] and [30] (French CJ), [99]-[101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and [137]-[138] (Heydon J).
[2]Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, [5], [23] and [27] (French CJ), [113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
This leaves the final factor, the merits of the appeal from Lansdowne AsJ or putting it another way, the chances of the plaintiff succeeding in the appeal should time be extended. As a re-hearing de novo, the outcome of this appeal is governed by whether or not time should be extended to allow the appeals from the two VCAT orders to be heard. One has, therefore, to consider the four factors in respect of each appeal from VCAT.
As previously stated, the appeal from the order of 14 February 2008 was nearly a year out of time. The plaintiff’s reasons for not appealing earlier are not persuasive, especially in respect of the period from 12 June 2008, when he had received Russell Kennedy’s bill for the three day hearing. Also, there is prejudice to Russell Kennedy if the appeal were allowed as it has incurred costs in taxing its bill before the Senior Member.
Finally, in my opinion, the chances of the plaintiff succeeding in overturning the orders made on 14 February 2008 are not strong. There is nothing in the material to suggest that the plaintiff’s attack on the Senior Member’s carefully reasoned rejection of the complaints about the size of Russell Kennedy’s initial bill would succeed. Further, the complaint about the fifth order concerning costs would also be unlikely to succeed. I do not consider that the plaintiff has shown that the Senior Member erred in the exercise of his discretion, pursuant to s.112 of the VCAT Act, to apply the presumption that Russell Kennedy was entitled to an order in its favour in respect of its costs incurred after the Offer of Compromise was made. He heard and considered the contrary arguments. Mr Alan Hamilton’s ignorance of the existence of s.112 cannot be blamed on Russell Kennedy, particularly when both its letter and the offer did state that the offer was made pursuant to Division 8 Part 4 of the VCAT Act, which includes s.112, and reference was made to the relevant cases.
Further, I do not consider that the plaintiff has shown that the Senior Member erred in his decision to order that the costs be paid by Mr Alan Hamilton, as he was the only “other party” to the VCAT proceeding, within the meaning of s.112, at the time the offer was made. Moreover, whilst the offer may have been addressed to his mother care of him, it was to all intents and purposes an offer to him to settle the costs dispute with the lawyers he had engaged. I am not persuaded that the manner in which the offer was addressed invalidated it for the purposes of s.112 of the VCAT Act.
All of this means that, in my opinion, it would be unlikely that the plaintiff would be granted an extension of time within which to appeal against the order of Senior Member Howell made on 14 February 2008, even if time to appeal against the order of Lansdowne AsJ was extended.
Although the appeal from the order of 18 December 2008 was out of time, it was within 28 days of Mr Alan Hamilton receiving the copy order from Russell Kennedy. Thus, the delay was significantly shorter. The reason for not appealing in time is correspondingly stronger but it is surprising that Mr Alan Hamilton did not follow up the order before time expired on 15 January 2009 when he knew that there was a dispute about what amount should be ordered to be paid. The prejudice factor is not really relevant in the case of this order.
However, in my opinion, the proposed appeal against the taxation order is hopeless. Once the arithmetic was done correctly, there really was no dispute about the amount to be paid. Further, the complaint that the Senior Member did not order that “both the first and second named applicants are jointly to pay the respondent’s costs” was misplaced. The December hearing was a taxation of costs, not an appeal or review of the orders made in the February hearing. If Mr Alan Hamilton wanted to challenge the order for costs against him alone then he had to do what he eventually attempted in March 2009, namely appeal to the Supreme Court against the order of VCAT.
Thus, I consider that it would extremely unlikely that the plaintiff would be granted an extension of time within which to appeal against the order of Senior Member Howell made on 18 December 2008, even if time to appeal against the order of Lansdowne AsJ was extended.
Conclusion
For all of the above reasons, I am not persuaded that it would be in the interests of justice to extend the time for the plaintiff to appeal against the order of Lansdowne AsJ. Accordingly, the appeal will be dismissed. I will hear from the parties on the question of costs.
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