Henley v Cook - [2016] SADC 147

District Court of South Australia
(Civil: Minor Civil Review)
HENLEY v COOK
[2016] SADC 147
Reasons for Decision of His Honour Judge Slattery (ex tempore)
18 November 2016
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME
In an application for extension of time to commence a minor civil review proceeding it is necessary for the applicant to address each of the following issues and questions: the reason for the delay in commencing such application, the length of the delay, whether the application alone or together with other material identifies an arguable case and the extent of prejudice suffered by the respondent.
All of these considerations will turn on the facts pertinent to the intrinsic matters raised by those questions, and those questions and factual issues must be considered in the light of the state of the proceedings and the parties to them. According to the facts more or less significant weight may be given to the length of a delay but where the application affects and purports to bind parties to the proceedings not named as respondents it will rarely be the case that the court could or would exercise its discretion in favour of an applicant. This will more emphatically be the case where the first instance judgment resolves issues between the plaintiff (respondent) and all defendants to the action as well as amongst each and every one of the defendants on a contribution basis. And in any event in this case the applicant’s position is misconceived and would not on any basis justify a departure from the orders of the learned magistrate.
Held:
Application for extension of time to commence this minor civil review refused.
Application dismissed.
District Court Civil Rules 2006 R 279A, R 295 , referred to.
Wright v Corani [2006] SASC 115, applied.

HENLEY v COOK
[2016] SADC 147

Application dated 21 September 2016 to review a minor civil decision made by Mr Gumpl SM on 17 August 2015. This action at first instance involved the plaintiff and five defendants who were the drivers of vehicles that were involved in a collision on South Road near O’Halloran Hill. Mr Henley’s car came into collision with the rear of the plaintiff’s car after the car behind his car driven by the second defendant collided with his vehicle. Prior to that collision there had been other end on end collisions behind the second defendant’s vehicle.
The basis for seeking the minor civil review by Mr Henley, the applicant, is that he does not remember ever receiving from the court or anyone else notice of a date on which to attend court for the hearing. He complains that a judgment was then wrongly entered in his absence. He would like a review of the decision made. He says that at the accident the subject of the claim, his car did not hit anyone but was pushed into the bumper of the car of the plaintiff. That occurred when a collision occurred between four cars immediately behind his car. The car immediately behind his car driven by the second defendant crashed into his car causing his car to come into a collision with the car of the plaintiff.
Mr Henley says that he is not at fault because his car was rear-ended by another vehicle as I have already explained. An assessment was made of his car by Evolution Crash Repairs. That business informed Mr Henley that his vehicle was a write-off because the rear chassis had been bent. There was very little damage to the front of his vehicle.
He further complains that the way the accident occurred was that the plaintiff was driving her vehicle in a southerly direction on South Road travelling up O'Halloran Hill towards the intersection of South Road and Majors Road. He tells me that her driving was erratic because she made a sudden change from the middle lane to the outside, or the far right western lane of the roadway and then applied her brakes in a way that caused her car to lock up; that was the reason why the accident occurred. He also says to me that at the time that she applied her brakes on that, the laneway in front of her was clear and there was no reason to do so. I am unable to accept and I reject those assertions of the applicant. They border on specious.
Mr Henley asked for an extension of time to bring the review. He says that he was not sure of the process so he had to get advice on how to appeal the decision made. He seems to have obtained inconsistent advice, but finally received advice from the free legal advice line and on the basis of the fact that he had received some advice more latterly, he has brought this application. That brings into operation rule 295 of the rules in relation to extension of time for an appeal. Attached to the application is a two page affidavit in which Mr Henley explains the way that he says that the accident occurred.
Mr Henley asserts from the bar table that as far as he is concerned the behaviour and activities of the plaintiff would suggest some impropriety on her part about the fact and quantum of her claim. He says he would make this assertion from the bar table because he says once the plaintiff’s car travelled into the outside or western lane of South Road travelling in a southerly direction, the plaintiff applied brakes at a time when there was no reason to do so. He says that there were no traffic lights ahead, there were no vehicles in front of her vehicle in her lane and there was no other reason for her to apply her brakes. Again, I reject all of these unbased assertions out of hand. They are specious and the making of them is completely unsupported by any credible evidence.
Secondly, he says that the quantum of the plaintiff’s claim is inflated. I reject that submission for the same reason. The applicant does not appear to understand that the court process cannot be used to besmirch people’s reputation. He wants a re-assessment of that claim and he would want a re-assessment of the proportion of liability assessed to him. He says that he wants the matter re‑listed and re-heard.
The claim was commenced by a minor civil action claim in the Magistrates Court on 24 March 2015. The plaintiff named five defendants: Tony Henley, the applicant on this review; Phillip Cooper, the second defendant; Brian James Lowry, the third defendant; Thomas George Walker, the fourth defendant; and Peter James Hicks, the fifth defendant. The numerical order of these defendants matched the order of those vehicles behind the plaintiff’s vehicle at the time of the collisions.
In her application the plaintiff pleaded that on 21 February 2013 she was driving her Ford Falcon motor vehicle on South Road and was stationary in a line of traffic on Main South Road. She then pleads that Mr Henley's vehicle was immediately behind her vehicle and then the position of the vehicles of the second, third, fourth and fifth defendants. She says that as a result of a collision involving the defendants' vehicles caused by their negligence, her vehicle was damaged. She sets out the particulars of a pleading of negligence and then pleads damage in the amount of $4,963.99 plus some incidental expenses.
Only four of the defendants filed a defence. The defence filed by the second defendant in para.1 does not dispute the allegations contained in paras.1 and 2 of the particulars of claim filed by the plaintiff. Paragraph 1 of the plaintiff’s claim pleads that at the time of the collision her car was stationary in the line of traffic on Main South Road, O'Halloran Hill. Therefore the second defendant has made admissions for the purposes of the hearing which will have been relied upon by the plaintiff in the prosecution of her claim.
The other defendants who filed defences did not plead to the question of whether or not the vehicle of the plaintiff was stationary. Their pleadings were that they did not know and could not admit or deny, or did not plead to that allegation. It is important to note that the second defendant has committed himself to a version of facts agreeing with the version of facts pleaded by the plaintiff.
The proceedings that were issued on 24 March 2015 were according to the court file served on Mr Henley via post to his address at Blair Athol. Before me today Mr Henley has confirmed that that address is correct. It is the address for service provided by him on this application for review. I am satisfied on the court record that all documents and correspondence directed to Mr Henley have been sent to this address.
I am also satisfied that Mr Henley did not file a defence in the Magistrates Court proceedings and he did not attend a hearing on 17 August 2015 at which all of the parties were in attendance. I am satisfied from the court file that notice of the hearing was sent to Mr Henley at his address and I am also satisfied from the court file that the pleadings and other documents were properly served upon Mr Henley at the address. I would reject Mr Henley's version of facts to the contrary.
The hearing took place before Mr Gumpl SM. There is no formal judgment from Mr Gumpl SM. All that is recorded is that Mr Gumpl SM has made orders dividing the liability for the relevant damage as amongst the various defendants. For example, in relation to the damage done to Mr Henley's vehicle in the collision which Mr Henley informs me is a write-off, an order has been made that Mr Henley has an entitlement to recover 15% of his damages from Mr Cooper, 15% from Mr Walker, and 70% from Mr Hicks. Orders were made in relation to Ms Cook that she is entitled to recover 40% of her damages against Mr Henley, 10% against Mr Cooper, 10% against Mr Walker and 40% against Mr Hicks.
Other orders were made in respect of the other three defendants, Lowry, Walker and Cooper. Those are not relevant to this assessment.
Mr Gumpl SM has then gone on to make orders that the insurance representatives have agreed the following payments based on agreed quantum: Cook Damage: Henley $2,261.72; Cooper $565.43; Walker $564.43; Dick (Hicks) $2,261.72.
There is no explanation by reasons of how Mr Gumpl SM came to that decision. Mr Kerr, the insurance representative who appeared for the plaintiff, informs me that Mr Gumpl SM heard the parties in evidence and after hearing the parties and all of the relevant material put to him made the assessment of the liability of each party towards the other, and then an assessment of the damages that they are entitled to claim. They are reflected in the plaintiff’s damages figures that I have set out above. Mr Gumpl SM was unable to make an assessment of the amount of the damage suffered for Mr Henley because Mr Henley did not attend the hearing.
However, Mr Henley still has the entitlement to make a claim against Cooper for 15% of his damages, as against Walker for 15% of his damages, and against Mr Hicks for 70% of his damages. Mr Henley told me today that his car had been assessed at about a value of $3,000 as at the date of the accident. It has a write-off value of $200. He informed me that he has now sold the vehicle to his mother. He would not inform me - notwithstanding the number of requests that I made to him - of the amount for which he'd sold the vehicle to his mother.
Following the judgment by Mr Gumpl SM on 17 August 2015, correspondence was sent to Mr Henley by the plaintiff’s solicitors advising of the judgment and making the request for the payment of the sum of $2,261.72. This accords with the damages assessment made by Mr Gumpl SM. That request was sent to Mr Henley at his Blair Athol address, but no response was received.
As a result, on 21 October 2015 the plaintiff applied to the Registrar of the Magistrates Court to issue an investigation summons to be served upon Mr Henley at his Blair Athol address. That summons was served in the same manner, namely by post and the hearing was listed for 10 December 2015.
Mr Henley did attend that investigation summons hearing on that day. In his presence the registrar made an order for a judgment sum of $2,400.70, which included the costs of the day for that investigation summons should be paid by Mr Henley in full by 15 April 2016. No amount was paid by that date or at any time subsequent to that date.
Following the failure by Mr Henley to make the payment by 15 April as ordered, on 27 April 2016 the plaintiff made an application to the Adelaide Magistrates Court for the registrar to issue an examination summons. The records from the sheriff's officer of the court indicate that attempts were made on 12 April 2016, 16 May 2016, 23 May 2016, 27 May 2016, and 31 May 2016, to serve the examination summons at the Blair Athol address. Each of those attempts were unsuccessful according to the report of the sheriff's officer.
The sheriff's officer states that on each occasion he could not get access to those premises because they were protected by locked gates and a high security fence. The sheriff's officer said that he left a contact card on each occasion, but no contact was made with him.
Mr Henley has said to me that his premises are protected by locked gates and a high security fence. He says that there probably may not have been a letterbox at the time: sometimes he gets mail but sometimes he doesn't.
On about 9 August 2016, the plaintiff applied for the reissue of the examination summons. That was served by post on Mr Henley at the Blair Athol address. Following the service of that summons, Mr Henley did attend at the hearing of an examination summons on 22 September 2016. At that time he informed the registrar that he wanted to dispute the judgment, and he had lodged an application to review the decision of the court.
It is in the background of those facts that I come to consider the question of the extension of time for the issue of this application to review a minor civil decision. Under the rules an application to review a minor civil decision is required to be commenced within 21 calendar days after the judgment the subject of the review: rule 279A District Court Civil Rules 2006. This application is made some 380 days or some 54 weeks out of time, so Mr Henley requires an extension of time for which he applies in his application.
The respondent to the appeal, the plaintiff, submits that there is no proper basis to grant an extension and that prejudice would be suffered if the application was allowed. Under rule 295 of the rules I have the power to extend time for the commencing of an appeal or taking any step in an appeal. On the question of the extension of time the criteria generally are well settled. I am required to do justice between the parties. There is no fixed set of rules and questions of fact and degree have application. If the respondent to the appeal (and this must include persons who ought to be respondents to the appeal) would suffer prejudice by the extension it would only be granted where the application can show a real possibility that a miscarriage of justice might occur if the extension was refused: Wright v Corani.[1]
[1] [2006] SASC 115.
In the exercise of my discretion delays are relevant. I should have regard to the length of the delay, the reason for it, whether there is an arguable case and the extent of any prejudice suffered by the respondent. These principles have been summarised in the following way:
1.There is no automatic right to an extension;
2.An extension will only be granted upon proof that strict compliance with the time limits will work an injustice;
3.In determining any injustice the court will look to the length and reasons for the delay and any prejudice to the respondent;
4.Delay attributable to a solicitor will not work as severely as that by the applicant;
5.Whether the application has an arguable case.
Time should not be granted where an appeal could not possible succeed, or where there is no arguable case that could succeed. I am mindful of the usual consideration that ordinarily, determinations of court should be final and extensions of time tend to erode the confidence in the administration of justice. I am also mindful that a proper explanation for delay is not a precondition for an extension being granted where other relevant factors would justify the extension. A conscious decision not to appeal while other matters are occurring is not a justified delay.
There are a number of discretionary features that are in play here. The first is that in this application Mr Henley has not joined (as he must) each of the other defendants Mr Cooper, Mr Lowry, Mr Walker and Mr Hicks. They are people with an intrinsic and essential interest in this appeal. The failure to join those persons makes it almost impossible to give any consideration to an extension of time for this appeal. That of itself is almost sufficient to reject the application.
There are other fundamental reasons. I am satisfied that the statement of claim, the notice of outcome of hearing, the investigation summons and the examination summons were all served upon Mr Henley. I am also satisfied that he did not file a defence or attend the hearing. He attended the first and second review hearing. The notices for the first and second review hearing were all sent to the same address as all of the other court documents. Having attended the first hearing he was aware of an order that he pay the judgment sum by 15 April 2016 but he did not pay that judgment sum. At the same time he took no application to review the minor civil decision of Mr Gumpl SM. He did not attempt to contact the sheriff despite the cards left by the sheriff on at least five occasions at his home.
Before me today and in his affidavit Mr Henley has failed to provide any reasons why he has failed or refused to comply with any previous orders of the court. Mr Kerr for the plaintiff (Mr Kerr is the representative of the insurer of the plaintiff) says that I should reject any connection with the obtaining of legal advice. The explanation given by Mr Henley in his application for extension of time was that it wasn't until very recently (before his application) that he was given advice by the free legal service, that he could bring an application for a minor civil review. He does not say when it was that he obtained that advice. It appears that that advice might have been received at or about the same time as the second hearing before the registrar on the examination summons. However, that does not explain why nothing was done about this judgment at the time that notice was received on or about 10 December 2015 for the first examination summons. Nor does it explain why nothing was done after the first examination summons when Mr Henley was aware that he was required to pay the judgment sum.
Mr Kerr submits that everybody has had their day in court and that all of the other defendants have settled matters as between them in accordance with the orders of the court. Each of the insurers have made payments in accordance with the requirements of the judgment and in accordance with their own arrangements. All of the other parties who have been involved in those payments are not parties to this appeal. I think that is a very important point.
I also think that another point which is very important is that the second defendant has made an admission of the facts pleaded in paragraph 1 of the plaintiff’s claim. That means that there would be a further trial to be had upon the differences between Mr Henley and the second defendant. This is after the liability of the second defendant has been established and the second defendant has paid out his liability under the terms of a judgment order of the court.

Notwithstanding the absence of Mr Henley at the hearing, the magistrate proceeded to make a determination of liability. In the absence of reasons it is not clear to me how the learned magistrate came to his decision as to the proportionate liability of each defendant, but that is not an inquiry for me here. The fact is that that decision was made. If that decision was to be overturned, it would be overturned not only in respect of the positions between the plaintiff and all of the defendants, but also as between the defendants themselves.
There is a further complicating feature: I set out earlier in these reasons the material upon which Mr Henley would rely. He also now wishes to make an unsupported attack on the character of the plaintiff. The court will not allow such a thing to occur. He says that the collision took place at a time when the road in front of the plaintiff was completely clear. He would ask the court to accept that the plaintiff essentially stopped her car in the middle of South Road at a time when there was no lights or other vehicular traffic in front of her requiring her to stop her vehicle. I think that is a remarkable proposition which is breathtakingly unlikely. Having regard to the fact that it appears that at least five insurers have been involved in this action, I think it is a remarkable proposition for the applicant to make any such unsupported allegations against the plaintiff or anyone else.
In the end, I am not prepared to grant the extension of time. In my view nothing within the assessment of Mr Gumpl SM in any way suggests that there has been in any way a miscarriage of justice. Mr Henley has his entitlement to enforce his claims as against the other vehicle drivers and the orders of Mr Gumpl SM remain extant. Mr Henley has not pursued those claims, for reasons which were not explained before me; it appears Mr Henley simply has not read the orders made by Mr Gumpl SM or any other document that has been given to him.
For those reasons I would reject the application for an extension of time to appeal. If it was necessary so to order, I would otherwise affirm the judgment of Mr Gumpl SM.