Hegarty v Keogh - [2021] SASCA 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HEGARTY v KEOGH
[2021] SASCA 46
Judgment of the Honourable Justice Livesey
27 May 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
On 30 December 2020 the appellant commenced an appeal against an order dismissing proceedings for the recovery of legal fees and disbursements incurred when the appellant acted as solicitor for the respondent between 2004 and 2012.
At the callover on 19 March 2021, the appellant was given an extension of time until 16 April 2021 to file his written outline of submissions. On 22 April 2021, he was granted a further extension until 27 April 2021. The appellant did not file his outline until 5 May 2021. The appellant applied for another extension of time.
The respondent objected to the extension, contending that by r 218.13(3) of the Uniform Civil Rules 2020 (SA), the appeal must be taken to have been discontinued and lapsed.
Held per Livesey JA:
1.      The effect of the order made at the callover on 19 March 2021, extending the time for the    appellant to file his written outline of submissions, was to displace the automatic    discontinuance otherwise effected the r 218.13(3) and the appeal is not to be taken to be “discontinued”.
2.      The appellant is granted another extension of time within which to file his written outline.
3.      The appellant must pay the respondent’s costs of his application for an extension of time, of        the appeal grounds abandoned and of the hearings on 1 April, 13 April and 25 May 2021.
4.      The role and conduct of callovers in the management of appeals before the Court of Appeal         explained.
Supreme Court Act 1935 (SA) s 19C; Supreme Court Criminal Rules 2014 (SA) r 106A, r 125A; Supreme Court Criminal Supplementary Rules 2014 r 69; Uniform Civil Rules 2020 (SA) r 1.5, r 194.4, r 211.1, r 218.2, r 218.3, r 218.5, r 218.13, referred to.
Charitopoulos v DJH Crowd Management (No 2) [2009] SASC 241; Coastal Ecology Protection Group Inc v City of Charles Sturt [2020] SASC 215; Golski v Kirk (1987) 14 FCR 143; Hall v Carney (No 2) [2021] SASCA 42; Hegarty v Keogh [2020] SASC 237; McDonald v Commissioner of Patents (1913) 19 ALR 61; R v Keogh (No 2) (2014) 121 SASR 307; Raedel and Raedel v Shahin (No 2) [2018] SASC 119; Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454; Reed Business Information v Seymour [2010] NSWSC 790; Riveria Holdings Pty Ltd v Fingal Glen Pty Ltd (in liq) (No 3) (2013) 120 SASR 515; Ryan v Hill [2020] SADC 58; Smith v Papamihail (1998) 88 FCR 80; Victim’s Compensation Fund v Brown (2002) 54 NSWLR 668, considered.

HEGARTY v KEOGH
[2021] SASCA 46
LIVESEY JA:
Introduction

The appellant has again applied for further time within which to file his written outline of submissions. The respondent says that there is no point granting an extension because, by r 218.13(3) of the Uniform Civil Rules 2020 (SA), this appeal is taken to be discontinued and has lapsed.
The appeal is against an order dismissing proceedings for the recovery of legal fees and disbursements incurred when the appellant acted as solicitor for the respondent between 2004 and 2012 in connection with attempts to challenge the respondent’s conviction for murder. The appellant retained Mr Borick QC. Later, a different legal team represented the respondent before the Court of Criminal Appeal. The Court of Criminal Appeal set aside the respondent’s conviction and directed that he be retried,[1] but the Director of Public Prosecutions entered a nolle prosequi. The respondent spent around 19 years in prison. Later, the respondent received from the State government an ex gratia payment of $2.57 million.
[1] R v Keogh (No 2) (2014) 121 SASR 307.
The appellant claims that there was a retainer to secure the respondent’s release from prison and to obtain compensation and, in the event of success, fees and disbursements would then become payable by the respondent to the appellant.[2] The appellant has claimed a sum exceeding $535,000.00, of which more than $427,000.00 is said to be due to Mr Borick. The Judge below entered summary judgment in favour of the respondent, not because a cause of action was not disclosed, but because the evidence adduced by the appellant to support it “demonstrates that he has no reasonable basis for prosecuting the claim”.[3]
[2] Hegarty v Keogh [2020] SASC 237, [8] (Judge Bochner).
[3] Hegarty v Keogh [2020] SASC 237, [136] (Judge Bochner).
Disposition of the application
For the following reasons, the effect of the first extension of time I gave on 19 March, by which the appellant had until 16 April 2021 to file his outline, is that r 218.13(3) does not operate and the appeal is not to be taken to be “discontinued”.
I have decided to grant the appellant an extension of time in which to file his written outline. In the absence of any particularly good reason for the appellant’s delays, the order for costs must reflect the indulgence he seeks. In addition, he has put the respondent to costs thrown away. The appellant will pay the respondent’s costs of his application for an extension of time, of the appeal grounds abandoned on 5 May 2021, and of the hearings on 1 April, 13 April and 25 May 2021.
Background to this application
The judgment the subject of this appeal was delivered on 11 December 2020.
The appeal was commenced on 30 December 2020 and, pursuant to the rules, that is the “preparation commencement date”.[4] I was told during the course of argument that the appeal was not served, but the respondent nevertheless filed a Notice of Acting on 11 January 2021.
[4] See r 211.1, “the date of institution of the appellate proceeding.”
The three-month timeframe within which the respondent contends that all appeal materials must be filed by the appellant was due to expire on 30 March 2021, see r 218.13(3) of the Uniform Civil Rules 2020 (SA):
(3) If the appellant has not filed the core appeal book, exhibit appeal book, written submissions, a list of authorities, chronology and an information sheet 3 months after the preparation commencement date, the appellate proceeding is taken to have been discontinued and lapses.
This matter was first called over on 19 March 2021. On that occasion, the core appeal book had been filed on 15 March 2021, but no other documents had been filed. I was told that counsel for the appellant had only recently been retained, but there were draft outlines and it was expected that the appellant’s written outline would be finalised within four weeks. The appellant was, in effect, seeking an extension of time within which to file his outline and other materials.
The respondent opposed any extension of time, emphasising that there had been no explanation given for the delays to that stage. Counsel referred to the three-month timeframe that was about to expire. When I enquired whether the appellant’s explanation for the delay to that stage was important, counsel said that the explanation was not important, though “it would have … been preferable if we had … heard something … beforehand”. I then indicated to the parties:
I understand that, and whilst I [tend] to agree, I am perhaps a little more interested in getting the matter on for hearing and ensuring that all of the documents that need to be filed are filed, but I understand the point you have made. It will be implicit in the orders that I make today that there will be an extension [of time].
I then set the appeal down for hearing before the Court of Appeal on Wednesday, 2 June 2021, with one day set aside.
Because counsel for the appellant foreshadowed an application to lead fresh evidence, but was not in a position to address that on 19 March 2021, I adjourned the matter to the next callover the following fortnight on 1 April 2021. The only orders I made on 19 March 2021 were as follows:
1.The appellant’s written outline is to be filed and served by Friday, 16 April 2021.
2.The respondent’s written outline is to be filed and served by Friday, 30 April 2021.
3.The matter is listed for the next callover on Thursday, 1 April 2021 at 9:15am.
Before the next callover, there was correspondence with my chambers in which the parties, effectively by consent, requested that the hearing of the appeal be adjourned to a date in September 2021.
When the matter was called over on 1 April 2021, counsel for the appellant was unable to progress the application to lead fresh evidence. Nonetheless, senior counsel for the respondent put the submission that, regardless, the appeal must be taken to have been discontinued and had lapsed. Because there was clearly some dispute about that proposition, I set the matter down for argument before me on 13 April 2021.
On that occasion, I heard further submissions from counsel for the appellant and from senior counsel for the respondent. The appellant again needed more time within which to file an outline and said that an extension until 27 April would be sufficient. I directed that a formal application to extend should be made by the appellant, giving the reasons for the extension. I indicated to the appellant that he might consider whether, as a precaution, he wished to apply to reinstate pursuant to r 218.15. Ultimately, as both parties wished to supplement the material available to the Court and, to suit the convenience of the parties, the hearing of the matter was adjourned to 25 May 2021.
On 22 April 2021, the appellant applied for an extension of time until 27 April 2021 and filed affidavit evidence concerning that and the topic of fresh evidence. The appellant made no application for reinstatement. The appellant’s outline was not filed until 5 May 2021. On 11 May 2021, the respondent’s solicitor filed an affidavit addressing the merits of the appeal.
At the hearing on 25 May, counsel for the appellant conceded that the outline had not been filed within the time he sought on 13 April, namely by 27 April 2021. He could give no satisfactory explanation for the inability to meet the timeframes set by the Court on 19 March (16 April) or which he gave to the Court on 13 April (27 April). Ultimately, he conceded that the proposed fresh evidence was not fresh evidence, but further evidence, and the application to lead it was not pressed. Counsel handed to the Court an amended Notice of Appeal in which only appeal ground 7 remained. All other appeal grounds were abandoned, as had been foreshadowed in the appellant’s outline served on 5 May 2021.
On costs, counsel for the appellant submitted that no order should be made because the hearings all formed “part of the cut and thrust leading up to the hearing of an appeal” and that costs should be “in the cause”.
Senior counsel for the respondent submitted that, apart from the proposition that the appeal must be taken to have been discontinued and lapsed, there was no good reason to grant an extension of time for the outline because the appeal was not reasonably arguable and no satisfactory explanation for the delays had been given. He outlined a number of reasons why the appeal was not reasonably arguable. At the heart of these submissions were that the appellant had now abandoned six out of seven appeal grounds, and that the appellant’s case on costs depended on his client receiving compensation when he had never received compensation, only an ex gratia payment. He submitted that, in any event, the appellant should pay his client’s costs of the appellant’s application, and his client’s costs thrown away on the abandoned appeal grounds (to 5 May 2021, when the outline of submissions was received) on an indemnity basis, payable forthwith.
Is the appeal taken to be discontinued and lapsed?
I must first determine the respondent’s objection before addressing the question of an extension.
Chapter 18, Part 8, Division 1 of the Uniform Civil Rules 2020 (SA), contains the procedures applicable to appeals. The timeframes within which appeal materials must be filed are prescribed by Divisions 2 to 4.
By r 218.2, a variation of those time limits may be sought from the Registrar or the Court by an interlocutory application.
For present purposes, it is unnecessary to set out each of the timeframes that apply to the filing of appeal materials. It is sufficient in this case to notice that the appellant was obliged to file the core appeal book 28 days after the appeal was commenced on 30 December 2020, but did not do so until 15 March 2021, well out of time, see r 218.3(2). Likewise, and within the same timeframe, the appellant was obliged to file his written outline, list of authorities and a draft chronology, see r 218.5(2).
By r 218.12(1), the Court may treat the appeal as being ready to be listed for hearing on the earlier of: (a) 56 days (or eight weeks) after the preparation commencement date (subject to any variation of times under r 218.2); or (b) seven days after the due date for filing by the appellant of written submissions in reply.
The principal submission for the respondent is that r 218.13(3) operates to discontinue the appeal unless all of the materials described in that sub-rule have been filed within three months after the preparation commencement date, being in this case by 30 March, given the institution of the appeal on 30 December 2020. Accordingly, the respondent submits, because not all of the required documents were filed by 30 March 2020, this appeal must be taken to have been discontinued and has lapsed.
In support of this reading of the operation of the rule, reliance was placed upon the use of the word “and” appearing before the words “an information sheet”. Accordingly, it was submitted, the compendious reference to these six appeal materials means that all of them must be addressed within the three-month period.
There is much to be said for this reading of the sub-rule. It might also be said that, contextually, the Uniform Civil Rules 2020 (SA) evinces a preference for what is sometimes described as the “front-end loading” of the work required to prosecute an appeal. That may be contrasted with the timeframes which still apply to criminal appeals, where the time for the filing of outlines is still determined by reference to the appeal hearing date, rather than the appeal commencement date.[5]
[5] See Chapter 13, Part 6, r 125A(2) of the Supreme Court Criminal Rules 2014 (SA) and Chapter 13, Part 6, r 69(1)-(2) of the Supreme Court Criminal Supplementary Rules 2014 (SA) which provide that the appellant’s outline is to be filed no later than 4.30 pm, six clear business days before, and the respondent’s outline to be filed no later than 4.30 pm, four clear business days before, the listed hearing date.
Nonetheless, there are authorities recognising that the use of the word “and” can, in particular contexts, be akin to the use of the word “or”[6] and, in this way, it might be possible to read the rule as operating only where none of the required appeal materials has been filed within three months. Indeed, it would seem a surprising result if an appellant was at risk of discontinuance if, having filed the requisite core appeal book, written submissions, list of authorities and chronology, the appellant could not file the exhibit appeal book because the respondent had not delivered an outline indicating which exhibits were required for the exhibit appeal book. The same might be said about an appellant’s failure to file an information sheet within three months after the appeal commencement date. In either of these cases, unless the appellant quickly seeks dispensation under r 218.2, the appellant must face the prospect that the appeal is taken to have automatically been discontinued and lapsed. Whilst the appellant can then apply for reinstatement under r 218.15(3), this potential operation of the sub-rule does, on the face of it, seem a surprising one.
[6] See, for example, Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454, [23] (Malcolm CJ); Reed Business Information v Seymour [2010] NSWSC 790, [54] (Ball J); Smith v Papamihail (1998) 88 FCR 80, 88-89 (Carr J); Victim’s Compensation Fund v Brown (2002) 54 NSWLR 668, 675 (Spigelman CJ), 682-683 (Mason P).
Ultimately, it is not necessary for me to express any concluded view about the proper meaning and effect of r 218.13(3). In this case, at the first callover on 19 March I granted the appellant an extension of time in which to file his outline, with that time expiring outside the three-month timeframe stipulated by r 218.13(3). In addition, I made it clear to the parties that I was granting the appellant an extension of time so as to facilitate the final hearing and determination of this appeal. Accordingly, and although only one of the required appeal documents was filed within the three-month timeframe, the effect of my order was to displace the automatic discontinuance otherwise effected by r 218.13(3).
The development and commencement of the Uniform Civil Rules 2020 (SA) on 18 May 2020 occurred at around the same time as the passage of the Supreme Court (Court of Appeal) Amendment Act 2019 (SA) in December 2019 which, by s 6A, created the General Division and the Court of Appeal. That legislation was not proclaimed until December 2020 to come into operation on 1 January 2021.
In conjunction with the commencement of the Court of Appeal, the Court of Appeal Judges have conferred with the legal profession and published information about the procedures adopted for the management and listing of appeals. One of these new procedures is the implementation of the callover. Though the callover is not yet the subject of any particular rule, amending rules have been drafted and will shortly come into operation.
The purpose of the callover extends beyond managing the listing of appeal hearing dates. The callover is the principal vehicle for the judicial management of appellate litigation in South Australia. At weekly callovers of less than one hour (civil and criminal callovers are held in alternating weeks), a single Judge will list appeals, make interlocutory orders, allocate hearing times for arguments and generally address all issues ancillary to the preparation and hearing of various appeals and applications for leave or permission to appeal.
Occasionally appeals or applications for leave or permission to appeal are heard before two Judges who, where the Chief Justice or the President determine, comprise the Court of Appeal, and have the authority to finally determine appeals and applications for leave or permission to appeal.[7]
[7] See s 19C of the Supreme Court Act 1935 (SA), r 212.4(c) of the Uniform Civil Rules 2020 (SA) and r 106A(c) of the Supreme Court Criminal Rules 2014 (SA).
As it is the procedural vehicle by which appeals are managed, it is necessary for counsel briefed for the hearing of an appeal to attend the callover, and to be in a position to address at the callover all matters ancillary to the preparation and hearing of the appeal. The orders that may be made by the Judge who conducts the callover may include, but extend well beyond, the timeframes specified in Divisions 2 to 4 of Chapter 18.
It might be said that the practice of the Court of Appeal managing appeals in this way involves less formality than the Uniform Civil Rules 2020 (SA) might otherwise suggest. The power of the Appeal Court Judges to do this is not in doubt. It may be found in rules such as r 12.1, as well as in the inherent jurisdiction and powers of the Court. Utilising those powers, the need for formal applications, affidavits and compliance with the timeframes specified can be reviewed and, if it is thought appropriate, dispensation given. No order is made without hearing from the parties during the callover. The Court’s discretion will be exercised having regard to the need for the parties to have certainty about the progress and prosecution of appeals as well as the need for this Court to efficiently, expeditiously and economically manage the appellate jurisdiction of the Court of Appeal.[8] That will, in appropriate cases, require that the interests and expectations of other litigants be considered.[9]
[8] See for example r 1.5 of the Uniform Civil Rules 2020 (SA): “The object of these Rules is to facilitate the just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings governed by these Rules”.
[9] Hall v Carney (No 2) [2021] SASCA 42, [15]-[20].

In this case, the orders made at the callover on 19 March gave the appellant more time within which to file an outline and to address the question of fresh evidence. Though r 218.13(3) did not continue to apply, the appellant did not comply with the timeframe set for the filing of his outline.
The extension of time
That then leaves the question whether I should accede to the request for further time within which the appellant may file his written outline.
The appellant requires an extension until 5 May 2021.
In circumstances where the appeal has provisionally been listed for hearing in September, there would not ordinarily be much scope to oppose an extension of time. However, the respondent points to the abandonment of most of the appeal grounds and submits that the appeal is not reasonably arguable because “the preconditions to payment of a quantum meruit cannot ever be established”. As well, he emphasises that he has never received compensation – the suggested trigger for the obligation to pay legal fees – and he has only received funds by way of an ex gratia payment. With all respect to the respondent, I do not propose to address each of the matters argued before me and in the correspondence exhibited to the affidavit evidence. I am conscious that the appeal is against an order made by way of summary judgment on the basis that there was no reasonable basis for prosecuting the costs claim. I am not prepared to find, in the course of an interlocutory hearing about whether to give more time to file a written outline, that no extension should be given because the appeal is without even arguable merit.
On the issue of prejudice, senior counsel for the respondent emphasised, amongst other matters, the long delay since the costs agreement the subject of the appeal was allegedly entered into, as well as the appellant’s delays and failures to comply with the various appeal timeframes. He did not point to any evidence of particular prejudice associated with giving the appellant an extension of time to file his written outline.
So far as the appellant is concerned, his explanation rises no higher than that he was initially undecided about whether to appeal, together with the inability of his chosen counsel to find the time to comply with the timeframes specified by the orders of this Court. Whilst it is often said that the failings of a party’s legal advisors will work less harshly than failings by the party, a party is generally bound by the conduct of that party’s legal advisors.
In all of these circumstances, it is clear that the appellant is seeking an indulgence in circumstances where the parties are otherwise in a position to proceed to a hearing of this appeal during the first week of September later this year. Whilst I am prepared to make the order sought, that the appellant is seeking an indulgence without having offered any good explanation for the failures to comply with the timeframes set since 19 March 2021 must be reflected in the order for costs made.
As a general proposition, a party seeking an indulgence must pay the costs associated with that indulgence:[10]
… if an applicant is in any way to blame, or is asking for an indulgence, he may properly be ordered to pay costs.
[10] McDonald v Commissioner of Patents (1913) 19 ALR 61, 64 (Griffith CJ). See also Golski v Kirk (1987) 14 FCR 143, 157 (Ryan J): “… it is usual for a party seeking an indulgence to pay the costs of the application …”. The latter case was cited with approval in Riveria Holdings Pty Ltd v Fingal Glen Pty Ltd (in liq) (No 3) (2013) 120 SASR 515, [18] (Nicholson J), Raedel and Raedel v Shahin (No 2) [2018] SASC 119 (Hinton J), and Coastal Ecology Protection Group Inc v City of Charles Sturt [2020] SASC 215, [29]-[30].
The presumptive position under the rules is that the costs of an application to extend time must be paid by the party making the application, see r 194.4. Sometimes an applicant seeking an indulgence or an extension is required to pay the costs of the application, but not of the argument, if the opposition to the application fails. The indulgence sought by the applicant, in those circumstances, does not extend to the costs associated with successfully pressing an argument in support of the application. That, however, does not accurately reflect what happened in this case.
The hearings after 19 March were primarily necessitated by the appellant’s ongoing failure to meet the timeframes set for the filing of his outline and by the suggestion that he wanted to put on fresh evidence. The possibility of fresh evidence remained in issue until it was abandoned on 25 May 2021. In addition, the unilateral abandonment of six out of seven appeal grounds, without explanation, has also put the respondent to unnecessary time, trouble and costs.
The respondent’s opposition to the application was based on a combination of contentions about r 218.3(3), lack of merit and prejudice. Whilst I have rejected those contentions, the appellant has succeeded in obtaining an indulgence on comparatively thin grounds. He has, in addition, put the respondent to costs thrown away. Whilst I am not prepared to order that costs be recovered by the respondent on an indemnity basis, or that they be payable by the appellant “forthwith”,[11] I think that the final position of these parties will fairly be reflected in an order that the appellant pay the respondent’s costs.
[11] See Charitopoulos v DJH Crowd Management (No 2) [2009] SASC 241, [5]-[9] (Judge Lunn): in “the exercise of a general judicial discretion”. See also Ryan v Hill [2020] SADC 58, [3] (Judge Dart), relying on the former r 265 of the Supreme Court Civil Rules 2006 (SA), which is the predecessor to r 194.1(1) of the Uniform Civil Rules 2020 (SA): “The Court may make an order for costs in favour of a party or non-party and against a party or non-party at any stage of a proceeding up and to and after the final determination of the proceeding”.
Conclusion
The appellant is given permission, nunc pro tunc, to file and serve his outline of submissions by 5 May 2021.
The appellant will pay the respondent’s costs of the appellant’s application for an extension of time, of the appeal grounds abandoned on 5 May 2021, and of the hearings on 1 April, 13 April and 25 May 2021, on a standard basis, certified fit for senior counsel.
I will hear from the parties as to any other orders required to ensure that this matter is ready to proceed to a hearing before the Court of Appeal in September 2021.