Jewiss v Deputy Commr of Taxation - [2005] SASC 26

Supreme Court of South Australia
(Civil: Application)
JEWISS v DEPUTY COMMR OF TAXATION
Reasons for Decision of The Honourable Justice Bleby (ex tempore)
21 January 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for extension of time to appeal to the Full Court - r 95.02 Supreme Court Rules - Whether single judge has power to grant extension - Only Full Court has power to hear - Single judge cannot grant extension of time.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
WAIVER OF FILING FEES
Appeal to Full Court - Application for waiver of fees on lodging notice of appeal - s 130(2) Supreme Court Act 1935 - Notice of appeal not filed within time - Whether Master should hear application before extension of time obtained - Necessity for waiver of fees application to be determined first - Matters relevant to hearing of application for extension of time - Application for waiver of fees remitted for determination by Master.
District Court Act 1991 (SA) s 43; Supreme Court Rules (SA) r 95.01, r 95.02, r 95.08; Supreme Court Act 1935 s 130(2), referred to.
Dagenham Nominees Pty Ltd v Shanks [2003] SASC 139; Wride v Werner [2004] SASC 211, applied.
Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2001] SASC 373, considered.

JEWISS v DEPUTY COMMR OF TAXATION
[2005] SASC 26

BLEBY J (ex tempore) Mr Jewiss has lodged for filing a notice of appeal to the Full Court against a final judgment of a Judge of the District Court pronounced on 9 December 2004 but amended on 20 December 2004 to correct what appears to have been a mathematical error. The Judge directed that the time for appeal would commence to run as from 20 December. The amount of the judgment against Mr Jewiss is $1,364,729.64.
Mr Jewiss’ notice of appeal was lodged with the Supreme Court Registry on 4 January 2005. On my calculation, and allowing for the fact that 3 January was a public holiday, and assuming that the time for appeal in fact commenced running from 20 December, the notice of appeal could have been filed within time on 4 January. However, it could not be filed because Mr Jewiss did not pay the fee required by the regulation to be paid on filing a notice of appeal. Instead, at the same time, he lodged a notice for specific directions applying for a waiver of the fees and seeking leave to appeal out of time “due to the Christmas period close down”. He also filed an affidavit relating to his financial position.
On 10 January 2005 his application for waiver of fees came before a Master who endorsed the request:
“Any waiver of fees is dependent on an extension of time to appeal being granted. Application to be resubmitted if and when extension of time granted.”
The application has now been listed before me for the purpose of considering an order for an extension of time within which to appeal.
As I said, the judgment appealed against is or includes a final judgment of the District Court. By virtue of s 43 of the District Court Act 1991 Mr Jewiss has an appeal as of right to the Full Court of the Supreme Court. By virtue of r 95.01 the appeal is “instituted” by filing and serving a notice of appeal. Rule 95.02 requires that the appeal be instituted within 14 days after the judgment appealed from, or within such other time as the Court may fix.
In Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2001] SASC 373 the Full Court expressed doubt as to whether a single judge had power to extend the time within which to appeal to the Full Court. The Court expressed the view that the reference to “the Court” in r 95.02 probably meant the Full Court, although in the circumstances it was not necessary to decide the point. Subsequently, Besanko J has held in Dagenham Nominees Pty Ltd v Shanks [2003] SASC 139 that “the Court” in that rule means the Full Court and that he had no power to extend time in respect of an appeal to the Full Court. White J in Wride v Werner [2004] SASC 211 has also reached the same conclusion. I agree with the reasoning in those decisions, and in any event they constitute precedents which I am required to follow. This means that it is only the Full Court that can extend the time within which to appeal, and the appellant’s present application cannot be dealt with by a single judge. It follows that I am unable to consider the application for an extension of time, and it must be referred to the Full Court.
In reasons for decision which I have given today in another matter, Tytler v Corbett [2005] SASC 27 I have pointed to a number of anomalies which arise from this situation. I will not repeat them. Normally, the application for extension of time will be dealt with by the Full Court at the time of hearing the appeal.
However, Mr Jewiss has been unable to file his notice of appeal and therefore cannot institute the appeal because he has not paid the fees and has not been able to obtain a waiver of fees from a Master. The power of the Court to waive fees is contained in s 130(2) of the Supreme Court Act. That provides:
“(2)The court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.”
Where a notice of appeal is lodged for filing out of time, there is nothing in the Act or in the Rules of Court which requires that the application not be dealt with unless an extension of time is granted. Indeed, in this case, if my calculation of the time is correct, Mr Jewiss lodged his notice of appeal for filing within time. The only reason it was not able to be filed that day is because of the unavailability of a Master to consider his application for a waiver of fees on that day. The Master’s only concern should have been whether there were grounds on which to remit the whole or any portion of the filing fees required to be paid on lodging the notice of appeal.
The institution of the appeal is not merely contingent upon the filing of the notice of appeal. The appeal is not instituted, in this case, unless and until the notice of appeal is served on all parties directly affected by the appeal. That will not normally be done until after the notice of appeal has been filed. It will not always be apparent from the Court file whether or when the appeal has been instituted. In any event, I do not consider that to be a relevant consideration on an application to waive fees.
The application for remission of fees has not yet been dealt with by the Master. In my opinion it should be. I therefore remit that part of the application before me to a Master to be heard and determined in accordance with the requirements of the Supreme Court Act. If the application is granted and the fees are remitted, the notice of appeal can then be filed. If it is not, Mr Jewiss will then have to pay the fee and the document can be filed. Unless an application is made under r 95.08 to dismiss the appeal as incompetent, the appeal must take its course, appeal books must be prepared and the matter set down for hearing in the Full Court within the time required by the rules.
It is also inappropriate that, even if I had power to do so, I should hear Mr Jewiss’s application for an extension of time ex parte. Until the notice of appeal is filed and served, the respondent to the appeal has no relevant interest in the matter such as would enable him to be heard on an application for extension of time. That is another compelling reason why the remission of fees application should be dealt with so the necessary processes can follow.
The formal orders will be:
1.The Court as presently constituted declines to hear the application for an extension of time within which to institute the appeal.
2.That part of the application seeking a remission of fees is referred to a Master for determination.
3. No order as to costs.