Hegarty v Keogh

Case [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

  1. The appellant has again applied for further time within which to file his…

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Hegarty v Keogh [2021] SASCA 46
Case
[2021] SASCA 46
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from a judgment delivered on 11 December 2020. The appellant initiated the appeal on 30 December 2020, which was designated the "preparation commencement date." The respondent filed a Notice of Acting on 11 January 2021, despite the appeal not having been served. The Uniform Civil Rules 2020 (SA) stipulated that all appeal materials were to be filed within three months of the preparation commencement date, meaning the deadline was 30 March 2021. The appeal was called over on 19 March 2021, at which point the core appeal book had been filed, but other required documents, including the appellant's written outline of submissions, had not. The appellant sought an extension of time to file these outstanding materials.

The primary legal issues before the court were whether the appeal had been automatically discontinued pursuant to rule 218.13(3) of the Uniform Civil Rules 2020 (SA) and, if not, whether a further extension of time should be granted for the appellant to file his written outline of submissions. The court was also required to determine the appropriate costs order given the appellant's delays and the indulgence sought.

Livesey JA held that the order made at the callover on 19 March 2021, which extended the time for the appellant to file his written outline of submissions, had the effect of displacing the automatic discontinuance that would otherwise have occurred under rule 218.13(3). Consequently, the appeal was not to be taken as discontinued. The court granted the appellant a further extension of time to file his written outline. However, acknowledging that the appellant had succeeded on comparatively thin grounds and had caused the respondent to incur costs, the court ordered that the appellant pay the respondent's costs of the application for an extension of time, the costs associated with abandoned appeal grounds, and the costs of the hearings on 1 April, 13 April, and 25 May 2021, on a standard basis. The court also provided commentary on the role and conduct of callovers in managing appeals before the Court of Appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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