Huggins v The State of South Australia (No 2) - [2005] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HUGGINS v THE STATE OF SOUTH AUSTRALIA (NO 2)
Judgment of The Honourable Justice Anderson
13 May 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal filed out of time - application for extension of time to institute appeal - application for extension of time to set down the appeal - series of applications for extensions of time brought by applicant on the ground that he has insufficient funds to instruct lawyers to prepare appeal books - more than a year passed since delivery of judgment appealed from - Supreme Court Rules amended to allow a single Judge of the court to consider an application for leave to extend the time in which to institute the appeal - appeal to lapse under Rule 95.11(3) in the absence of "special circumstances" - Held: no special circumstances demonstrated - application for extension of time to set down the appeal dismissed - alternatively, application for extension of time in which to institute the appeal dismissed.
Supreme Court Rules 1987 R95.11(3), referred to.

HUGGINS v THE STATE OF SOUTH AUSTRALIA (NO 2)
[2005] SASC 169
Application
ANDERSON J

The application before me is for an extension of time in which to set down an appeal to the Full Court. This application was filed by Mr Huggins on 22 March 2005, and first came before me in Chambers on 1 April 2005.
I ordered that the matter be adjourned to 29 April 2005, and that Mr Huggins file by that time an application for an extension of time within which to institute his appeal to the Full Court, and in addition to file all documents necessary to support that application. That order was one final chance for Mr Huggins to put his appeal to the Full Court in order. It followed the order made by Bleby J on 2 March 2005 which I will deal with shortly. The matter had a long history in various hearings before that.
On 5 February 2004 Mr Huggins filed a notice for specific directions seeking a waiver of filing fees and an extension of time in which to appeal the decision of Vanstone J delivered on 22 January 2004. This notice for specific directions was accompanied by a draft notice of appeal. The waiver of fees was initially not granted, but then subsequently granted after amendments had been made to the notice of appeal. This order was made by Judge Bowen Pain on 6 April 2004. The note made by Judge Bowen Pain is as follows:
“Waive fees in respect of filing of amended notice of appeal.”
Following that order by Judge Bowen Pain, the Registrar of the Court wrote to Mr Huggins on 13 April 2004. In that letter the Registrar acknowledged receipt of the “application and affidavit for waiver of fees”. I have examined the affidavit which covered both the waiver of fees application and the application for an extension of time. This affidavit is contained in a sealed envelope because of exhibits to the affidavit relating to personal circumstances of Mr Huggins. The affidavit, clearly the one being referred to by the Registrar in her letter of 13 April 2004, refers to the proposed grounds of appeal in “an attached application / notice of appeal”.
The application for waiver of fees was granted but made conditional upon amendments being made to the notice of appeal. As a result, an amended notice of appeal to the Full Court was filed on 13 April 2004. Mr Huggins’ appeal to the Full Court, if this were regarded as the notice of appeal, was out of time. He was out of time because he had sought and was waiting for a decision in relation to the waiver of fees.
On 14 September 2004 Mr Huggins filed an application for an extension of time to set down the appeal to the Full Court. That appeal came before me on 24 September 2004. My order was that “the time for the appeal for the Full Court be extended to 24 December 2004”. I was intending to deal with the application for the extension of the setting down of the appeal when I made that order, but that was not clear from the order.
There was at that time a question as to whether it was possible for a single Judge or a Master, as distinct from the Full Court, to grant an extension of time in relation to the lodging of an appeal to the Full Court under Rule 95.02. That rule has now been amended.
Mr Huggins took no steps to set down the appeal, and on 24 December 2004 filed another application for a further extension of time.
That application was dealt with by Bleby J on 14 January 2005 at which time he adjourned the application to 24 January 2005.
On 24 January 2005 Bleby J pointed out, in his ex tempore reasons, that my order of 24 September 2004 left some room for confusion, since there was that question as to the validity of the order. When looked at again it seems that because of what had transpired on the file previously, I was intending to deal with the application for the extension of time to set down the appeal.
In any event, Bleby J also pointed out to Mr Huggins that pursuant to Rule 95.11(3), because more than six months had elapsed since the filing of his notice of appeal, and an extension of time in which to set down the appeal had not been granted before that time elapsed, unless Mr Huggins could demonstrate “special circumstances” for the granting of an extension of time, his appeal would lapse. Justice Bleby found that the potential for confusion created by my order of 24 September 2004 constituted “special circumstances”, and ordered that the time in which to set down the appeal be extended to 4 March 2005. He also ordered that Mr Huggins pay the respondent’s costs of that application.
On 25 February 2005 Mr Huggins filed another notice for specific directions seeking an urgent rehearing for extension of time to appeal and asking that the court “extend appeal time to set down and hear appeal”. This application was heard by Bleby J on 2 March 2005. His Honour noted that since Mr Huggins last appearance the Supreme Court Rules had been amended to make it clear that a single judge has the power to extend time for the institution of appeals to the Full Court. His Honour remarked that:
“In the circumstances and only because of that change in circumstances I am prepared to grant an extension of time within which to set the appeal down for hearing but make it conditional upon the applicant bringing with all due haste an application for an extension of time within which to institute the appeal.”
Justice Bleby then granted the following order:
“1.    That the time within which the applicant’s appeal to the Full Court may be set down be extended to 2 May 2005.
2.     The granting of such extension is conditional upon the applicant filing and setting down for hearing before a judge in chambers on or before 23 March 2005 an application for an extension of time within which to institute the appeal and such affidavits as the applicant may wish to rely on in support of such an application.
3.     The applicant pay the respondent’s costs of the application.”
It is clear that Mr Huggins has not taken any steps to comply with the order of Bleby J, or the subsequent orders made by me on 1 April 2005. In view of his continued non-compliance I refused Mr Huggins’ request to have the hearing further adjourned. I find that pursuant to Rule 95.11(3) special circumstances do not exist for the granting of a further extension of time in which to set down the appeal, and consequently the appeal must lapse.
In the alternative, in light of the amendment to Rule 95.02, I am of the opinion that it is now appropriate that I consider Mr Huggins original application for an extension of time in which to institute the appeal. In considering whether an extension should be granted I have had regard to the contents of the various affidavits filed by Mr Huggins in relation to his appeal, and the notice of appeal itself.
It is clear from the file that one cause of delay in instituting the appeal was the time required for the determination of Mr Huggins’ application for a waiver of filing fees. However, since that time, Mr Huggins himself has been the cause of substantial delay, demonstrated by the fact that more than a year has now elapsed since the delivery of Vanstone J’s judgment. In addition, Mr Huggins’ notice of appeal does not disclose sufficient prospects of success to justify the granting of an extension of time. The notice of appeal predominately raises issues of fact. I therefore refuse Mr Huggins application for an extension of time in which to institute the appeal in the event that the appeal has not lapsed by virtue of the operation of the Rules.
In relation to the hearing on 29 April 2005, by facsimile dated 26 April 2005 Mr Huggins informed my Associate that he would not be able to attend at that time, and sought an adjournment. In his facsimile to my Associate, he said that he, “had just been phoned to fly out to work on 28 April 2005 for two weeks at the most remote mine in Australia”. He was advised by my Associate that he had either to attend himself or arrange for someone else to attend on his behalf. He did not appear but his mother came and told me that he had tried to get a lawyer to attend but did not have sufficient time to arrange this before leaving.
On previous occasions he has indicated that he intends to engage a lawyer when his funds permit it, but nothing has developed in all the time since the fees for filing were waived.
There must be finality in this matter. I have reached the conclusion that Mr Huggins either cannot or will not take the necessary steps to further proceed and therefore I dismiss the appeal.
In these circumstances I invite the Crown to consider discontinuing the cross-appeal.