Johnson & Johnson v Marshall No. Scciv-01-532

JOHNSON & JOHNSON v MARSHALL
[2001] SASC 265
Civil

LANDER J This is an application for an extension of time in which to appeal from a decision of a Judge of the District Court.
The applicant was the plaintiff in the court below. He brought proceedings against the respondent claiming damages for personal injuries in a motor vehicle accident which occurred on 23 December 1994.
The applicant’s claim was successful and on 1 April 1999 he obtained a judgment against the respondent in the sum of $35450.
The award however was less than the sum offered by the respondent to the plaintiff in a notice of offer filed under the District Court Rules in February 1999.
The Judge made an order for costs in the following terms:
“Plaintiff to have costs to 27/2/99 and the defendant to have costs from 27/2/99.”
That order was also made on 1 April 1999.
The applicant commenced these proceedings in this Court on 20 March 2001 with an application for waiver of fees to lodge a notice of appeal. That application was supported by an affidavit dated 20 March 2001 which exhibited the applicant’s financial position.
The application which I am hearing was brought on 9 July 2001 and the application is in the following terms:
“1.General directions.
2.Seek leave for an extension of time to appeal, to the Supreme Court of South Australia, a decision of District Court of South Australia (Civil) by his Honour JUDGE TAYLOR Retired dated 1 April 1999 in which he made the following orders:
(A) A judgement (sic) for plaintiff in the sum of $35,450.00.
(B) Plaintiff to have costs to 27/2/99 and defendant to have costs from 27/2/99.
3.The plaintiff states that he was unable to in April 1999, pursue an appeal as he did not have $10,000.00 to $15,000.00, plus only the $12,500.00 to $15,000.00 he would receive from the court settlement. My lawyer Mr Nolan whom had just taken over his own practice, said to me that to mount an appeal would cost me an upfront sum Estimated (sic) from Ward and Partners approximately $17,500.00. Mr Nolan also stated that I would have to secure in his trust account the sum of between $4,500.00 and $5,500.00, so he would be able to mount an appeal.
4.As the learned trial Judge’s order left me out pocket by some $24,055.56 I would have had to find another $22,000.00 to $23,000.00 to launch an appeal. The Commonwealth Bank Mortgage were chasing me to start making full payments, not just Interest only payments. I tried unsuccessfully to raise a loan, so all I was able to doe (sic) was to put my finances into a reasonable state and now apply to the Supreme Court of South Australia to be able to raise the matters which were over looked in the trial in the District Court of South Australia (Civil).
5.As in this great nation of ours whom I served for in excess of 24 years in The Australian Army, both in Australia and confronting the perceived enemy overseas Justice should be done and also seen to be done. I rest my case with the learned Judges of the Supreme Court of South Australia for them to make a fair and Just decision.”
I am not sure what has happened to the applicant’s previous application for waiver of court fees but it seems to me to be irrelevant for the purpose of determining this application for an extension of time.
The applicant claims in support of his application for an extension of time within which to appeal, that he was unable to prosecute an appeal in April 1999 due to his finances and due to his inability to fund solicitors to the extent necessary to bring this appeal.
As I have indicated he claims the Trial Judge’s order left him out of pocket by some $24,000.00 because his total costs exceeded the amount of the judgment and the amount he recovered in costs.
As I have also indicated he claims that he has been trying to put his finances in order since the date of the judgment in order to bring this appeal.
When the application was first made it was made ex parte but I directed the applicant to serve a copy of the notice of application on the solicitors for the respondent. That has been complied with.
After service of the order the respondent’s solicitors sought an adjournment in order to file an affidavit in response to the plaintiff’s affidavit. The respondent to the application relies upon an affidavit of Ms Patricia Mudge, a solicitor with Ward & Partners, solicitors for the respondent.
She has deposed to an agreement between the applicant and the respondent whereby the respondent agreed to waive that part of the order for costs made in the respondent’s favour in consideration of the applicant agreeing not to pursue any appeal against the judgment and orders of Judge Taylor made on 1 April 1999. She has exhibited a letter from Ray Nolan & Associates, the solicitors for the applicant, which confirms the agreement deposed to in the affidavit.
The applicant does not deny the existence of that agreement. Indeed he said he signed a paper at his solicitor’s office in accordance with the terms of agreement exhibited to the letter to Ms Mudge’s affidavit.
In my opinion this application for an extension of time within which to appeal should be refused for two reasons.
First because the application was made more than two years after the judgment and orders complained of in circumstances where in my opinion the explanation for the delay is unsatisfactory.
Secondly and more importantly because the applicant has agreed with the respondent not to appeal in consideration of the respondent not enforcing an order for costs. The respondent has complied with her obligations. In my opinion the applicant should comply with his obligations.
The applicant has said in explanation for his making this application after agreeing not to do so, that when this agreement was reached he believed that the order for costs made in his favour by Judge Taylor included the costs associated with the running of his business prior to Judge Taylor’s decision.
I am not sure how he could have understood that to be the case, especially in light of the fact that an order for costs was made in favour of the respondent who had no corresponding loss.
In any event the applicant asserts that he believed costs included more than legal costs and included what would otherwise be understood to be damages.
Whether that was his understanding when he agreed to the terms of the agreement with Ms Mudge’s client does not matter much, because he has acknowledged on this application that he certainly knew very shortly after that that the order for costs did not include any costs for the running of the business.
In response to my specific request the applicant has precisely identified the matters which he would wish to raise on appeal.
First he says there was an error in the court below in that the court permitted the respondent to subpoena records from American Home Insurance Company, the Department of Army and the Department of Veterans Affairs in February 1999 being after the date that the Deputy Registrar of the District Court had determined was the date upon which medical evidence could be obtained.
He also complains that after the date nominated by the Deputy Registrar he was examined by Professor Goldney.
Secondly he has asserted that Judge Taylor erred in proceeding with the trial after advising the applicant’s barrister and, through his barrister, him, that the Judge would not sit on a particular day. Apparently during the course of the trial and after the applicant’s case had completed, the applicant’s wife collapsed. She was taken from the precincts of the court to hospital. The applicant believed thereafter that the Judge would not sit on a particular day. He therefore did not attend the hearing; his barrister did and the matter proceeded. As I understand it the matter proceeded by way of the tender of documents and by way of addresses.
The applicant also complained of a variety of matters apart from the two matters which he precisely identified. Some of those matters relate to the conduct of the trial by his legal team. It should not be overlooked however that he was represented by an experienced solicitor and independent counsel.
It must not be understood on this application that I believe that the applicant would enjoy any real prospects of success on the two matters which he has identified.
The question of an extension of time is a question of the exercise of a discretion, which must be exercised judicially, and which must be exercised having regard to the justice of the case. It would be unjust in my opinion to allow the applicant now to pursue an appeal in circumstances where there has been such a delay and where there is in place an agreement that no appeal would be pursued.
In those circumstances I am bound to refuse the application for an extension of time and the application is dismissed. The order of the court will be application dismissed.

[2001] SASC 265

27 July 2001