BRONITA KARLA JACKAMARRA an infant by her next friend STELLA JACKAMARRA APPELLANT
AND
WILLIAM DARREN KRAKOUER FIRST RESPONDENT
AND
STATE GOVERNMENT INSURANCE COMMISSION SECOND RESPONDENT
Jackamarra v Krakouer [1998] HCA 27 22 April 1998 P28/1997
ORDER
Appeal allowed.
Set aside the orders of the Full Court of the Supreme Court of Western Australia and in lieu thereof order that:
(a)the period for entering the appeal for hearing in the Full Court be extended to a date six weeks from the making of this order;
(b)the second respondent's motion to strike out the appeal stand over generally;
(c)the second respondent have liberty to restore the strike out application in the event of the appellant's failing to enter the appeal within the period specified in par (a);
(d)the appellant pay the costs of the second respondent in the Full Court.
The second respondent pay the appellant's costs of the appeal to this Court.
2.
On appeal from the Supreme Court of Western Australia
Representation:
L W Roberts-Smith QC with E J Vardon for the appellant (instructed by Acting Director of Legal Aid, Legal Aid Western Australia)
No appearance for the first respondent
P V Batros for the second respondent (instructed by Brian C Sierakowski)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Jackamarra v Krakouer & Anor
Practice and Procedure – Extension of time to enter an appeal for hearing – Appeal lodged within time – Procedural default – Delay – Assessment of merits in exercise of discretion to extend time – Whether appeal is "arguable" or "fairly arguable" – Determination of "real prospect of success" – Availability of evidence.
BRENNAN CJ AND McHUGH J. The question in this appeal is whether the Full Court of the Supreme Court of Western Australia erred in refusing to extend the time for entering an appeal and, as a consequence of that refusal, in dismissing the appeal for want of prosecution. The decisive reason for the Full Court's decision was that the appeal lacked "any real prospect of success". On the way that the case was conducted, however, we think that the Full Court erred in relying on that ground.
The history of the case is set out in the judgments of Gummow and Hayne JJ and Kirby J. There is no need for us to repeat it. The transcript indicates that counsel for the appellant understood that he could show that the appellant had a case on the merits by referring to the reasons of Commissioner Dawes and by outlining the type of arguments that he intended to put before the Full Court on the hearing of the appeal. It does not seem to have occurred to him that the Full Court might reject the application for an extension of time by concluding that the appeal would fail because he had failed to refer to the passages…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jackamarra v Krakouer [1998] HCA 27
Case
[1998] HCA 27
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning a procedural dispute between Jackamarra (appellant) and Krakouer & Anor (respondents). The core of the dispute involved the appellant's attempt to enter an appeal for hearing in the Full Court of the Supreme Court of Western Australia after the initial lodgement of the appeal notice within the prescribed time. The Full Court had made orders striking out the appeal, which the appellant sought to set aside.
The legal issues before the High Court were primarily concerned with the principles governing the exercise of a court's discretion to extend time for procedural steps, specifically the entry of an appeal for hearing. The court was required to determine whether the Full Court had erred in its application of these principles and in its assessment of the merits of the appellant's case when considering the extension of time. This involved considering the nature of procedural time limits, the burden of proof on the party seeking an indulgence, and the appropriate approach to assessing the arguability of an appeal.
The High Court articulated a series of principles for the exercise of procedural discretions, emphasising flexibility and the need to do justice in individual circumstances, rather than adhering to rigid rules. It distinguished between procedural time limits and those of a substantive character, noting that procedural rules are generally treated with more indulgence. The court affirmed that while there is no exhaustive list of considerations, relevant factors include the length and reasons for delay, the arguability of the case, and any prejudice to the respondent. Crucially, the court highlighted that the assessment of an appeal's arguability on such an application should be broad, avoiding a detailed examination of the merits which would be inappropriate and inefficient. The court found that the Full Court had erred in its approach, particularly in its assessment of the merits and the appellant's entitlement to have the appeal heard.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Western Australia. It ordered that the period for entering the appeal for hearing be extended by six weeks, and the second respondent's motion to strike out the appeal was to stand over generally, with liberty to restore it if the appellant failed to enter the appeal within the extended period. The appellant was ordered to pay the second respondent's costs in the Full Court, while the second respondent was ordered to pay the appellant's costs of the appeal to the High Court.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the orders of the Full Court of the Supreme Court of Western Australia and in lieu thereof order that:
(a) the period for entering the appeal for hearing in the Full Court be extended to a date six weeks from the making of this order;
(b) the second respondent's motion to strike out the appeal stand over generally;
(c) the second respondent have liberty to restore the strike out application in the event of the appellant's failing to enter the appeal within the period specified in par (a);
(d) the appellant pay the costs of the second respondent in the Full Court.
3.
The second respondent pay the appellant's costs of the appeal to this Court.
2.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
BRENNAN CJ
HUGH J
GUMMOW AND HAYNE JJ
KIRBY J
I take the following principles to apply: 1.The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language[47]. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case[48]. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances[49].[47]Boomalli Ltd v Hake [1985] WAR 7 at 9.[48]In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.[49]Christie v Harvey and Hayward (1900) 2 WAR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167.2.Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that "special reasons" or "special circumstances" be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary[50]. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application[51]. Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to[52]. Inherent in the grant of a discretionary power is the assumption that it will sometimes be refused.[50]Jess v Scott (1986) 12 FCR 187 at 195.[51]Hall v Nominal Defendant (1966) 117 CLR 423 at 429.[52]Hall v Nominal Defendant (1966) 117 CLR 423 at 435.3.Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (decd)[53], Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) with procedural rules typically found in rules of court:[53][1981] Ch 167 at 175."[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules."For the purpose of this classification, which I accept, it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party's appellate rights.4.The party seeking indulgence bears the burden of persuading the decision‑maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused[54]. However, this is basically because to grant it would be futile. The practice ordinarily adopted in judging the arguability of a point was described by Lord Denning MR for the English Court of Appeal in R v Secretary of State for the Home Department; Ex parte Mehta[55]. It ordinarily involves consideration of "the outline of the case": [54]Foreman v Federal Commissioner of Taxation (1983) 45 ALR 258 at 260.[55][1975] 1 WLR 1087 at 1091; [1975] 2 All ER 1084 at 1088."We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."This description accords with my own experience of Australian practice. It appears to accord with that of the Federal Court of Australia where Mehta was cited and applied[56]. In Esther Investments[57], Seaman J, talking of the practice of the Supreme Court of Western Australia, said that the assessment of the merits was necessarily "broad" because the Court, on an application to extend time, will ordinarily have only "limited materials and argument". Reason and efficiency support this practice. On an application to cure a procedural time default, the parties are entitled to expect that the court will deal with procedural issues and not without warning or consent turn the motion into the substantive hearing of the appeal. Were that to be a common practice, the time of the courts in reviewing the factual and legal details of cases might be doubled - first in the practice list and then, if the matter were allowed to proceed, in the substantive hearing. That would not be an efficient use of the court's time or of the parties' attention to the case. Moreover, it could work an injustice on a party if a telescoped hearing, which should primarily be addressed to a procedural question, were converted into the determination of issues of complexity and substance, the proper treatment of which may require more time than is typically available in a busy practice court.5.Judicial attitudes to the grant of an indulgence under procedural rules of court have changed somewhat since the rather rigid approach which formerly marked such decisions[58]. The change came about as it was realised that such rules were themselves only intended to contribute to the attainment of justice[59]. That object necessitates a flexibility which accepts "the fallible world in which legal disputes arise and in which they must be resolved"[60]. Judges have warned against permitting the rules of court, particularly those relating to time, to become "an instrument of tyranny"[61]. This judicial attitude produced a less "draconian"[62] practice which tended to focus attention on the need for a measure of flexibility, the avoidance of undue technicality and the consideration of whether there was any actual prejudice to a party if the indulgence were granted, beyond that inherent in the continued prosecution of the proceedings[63].6.In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon a stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts[64]. Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd[65] countered the applicant's submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort:"To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. 'To no one will we deny or delay right or justice' [Magna Carta, ch 40]. All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it."More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits[66]. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires[67]. 7.In Esther Investments[68], the Full Court of the Supreme Court of Western Australia embraced, as relevant to applications for an extension of time, the four "major factors" which had been identified in Palata Investments Ltd v Burt & Sinfield Ltd[69], viz, the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. It was those principles which the Full Court applied in the present case. I would point out that Palata Investments was concerned with an application for an extension of time for appealing, not for extending the period within which an appeal, already lodged within time, might be entered for hearing. The distinction is important. In the latter case, the scope for review of the merits is necessarily more limited. The main object of the scrutiny is to obviate a hearing which would clearly be futile or to reinforce a preliminary view that a time default should be cured because of the apparent merits or arguability of the matter. I do not doubt that the four considerations mentioned in Esther Investments are relevant. But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious[70]; or merely the result of a bona fide mistake or blunder[71]; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled[72]. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant. 8.Where it is appropriate to conduct a preliminary assessment of the arguability or suggested futility of an appeal, it is necessary to bear in mind the principles of appellate review applicable to the case. Where, as in this case, the appellate court has, by statute, a right and duty to reconsider the decisions of fact and law made at the trial, the breadth of the court's functions has been stated many times[73]. Of course, if the decision of the primary judge turned on the credibility of the evidence of witnesses called at the trial, the difficulties of disturbing conclusions based upon such findings are well known[74]. Nevertheless, even in such cases, findings of credibility can sometimes be overcome[75]. Conflicts of medical and other expert testimony are not, in my view, ordinarily susceptible to resolution by simple credibility assessment[76]. A party, having an appeal as of right which it has exercised by filing a notice of appeal within time, is normally entitled to have the appeal heard and determined on its merits by the painstaking examination of evidence and argument. That is an entitlement which the appellant has been deprived of in this case.[56]See Jess v Scott (1986) 12 FCR 187 at 191-192.[57](1989) 2 WAR 196 at 205.[58]In re Coles and Ravenshear [1907] 1 KB 1 at 5-6.[59]In re Coles and Ravenshear [1907] 1 KB 1 at 4.[60]Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 172.[61]Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht [1974] 1 NSWLR 27 at 30; see also Cohen v McWilliam (1995) 38 NSWLR 476 at 478.[62]C M Stillevoldt B V v E L Carriers Inc [1983] 1 WLR 207 at 213; [1983] 1 All ER 699 at 704 per Griffiths LJ.[63]Morris v Public Transport Commission of New South Wales, unreported, Court of Appeal of New South Wales, 28 May 1984.[64]See eg Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935; Revici v Prentice Hall Inc [1969] 1 WLR 157 at 159-160; [1969] 1 All ER 772 at 774.[65][1968] 2 QB 229 at 245.[66]Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 153-154.[67]Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154, 172.[68](1989) 2 WAR 196 at 198.[69][1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520.[70]Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; Birkett v James [1978] AC 297 at 318.[71]Esther Investments (1989) 2 WAR 196 at 204.[72]Sophron v The Nominal Defendant (1957) 96 CLR 469 at 474; Hall v Nominal Defendant (1966) 117 CLR 423 at 435; Mehta [1975] 1 WLR 1087 at 1091,1092; [1975] 2 All ER 1084 at 1088, 1089.[73]See eg Warren v Coombes (1979) 142 CLR 531 at 551-552.[74]Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.[75]See eg Chambers v Jobling (1986) 7 NSWLR 1; Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 at 5.[76]Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 291-292.Conclusion: the Full Court erred
Ratio Decidendi
Legal Principle Established
Established by:
BRENNAN CJ,
HUGH J,
GUMMOW AND HAYNE JJ,
KIRBY J