Lanahmede Pty Ltd v Stephen John Koch No. Scciv-03-578

[2003] SASC 439

LANAHMEDE PTY LTD v STEPHEN JOHN KOCH
[2003] SASC 439

Civil

1. DEBELLE J           Mr Koch claimed damages in the District Court from Lanahmede Pty Ltd (“Lanahmede”) in respect of injuries he had sustained in an incident at the Lyndoch Hotel on 18 December 1998. On 24 April 2003 a judge in the District Court gave judgment for Mr Koch against Lanahmede in the sum of $72,123.30.

2. On 8 May 2003, Lanahmede lodged a notice of appeal against that decision. The appeal was against both the finding as to liability and as to the award of damages. The notice of appeal was promptly served on 9 May 2003.

3. Lanahmede’s solicitors were aware that it was necessary to prepare appeal books and to set the appeal down for hearing. However, they did not attend to the task immediately. It was not until 22 September 2003 that the solicitors for Lanahmede by letter asked the solicitors for Mr Koch to agree the exhibits and to sign the certificate as to the correctness of the appeal book.

4. The solicitors for Mr Koch did not promptly reply. On 7 October 2003, the solicitors for Lanahmede sent a further letter to the solicitors for Mr Koch seeking a return of the certificate. Again, the solicitors for Mr Koch did not reply.

5. On 29 October 2003, Ms Williamson, the solicitor in the firm acting for Lanahmede who was handling the matter, spoke to Mr Nitschke, a solicitor employed in the firm acting for Mr Koch. Mr Nitschke said words to the effect that he had obtained counsel’s opinion as to the contents of the appeal book and suggested an amendment should be made. The next day, on 30 October, Ms Williams sent an amended index to the appeal book to the solicitors for Mr Koch. Again, there was no prompt answer.

6. On 5 November 2003, Ms Williamson telephoned Mr Koch’s solicitors seeking return of the index to the appeal book and the certificate of correctness of the appeal book. That certificate was received on 7 November in the office of the solicitors for Lanahmede. However, the certificate was not drawn to Ms Williamson’s attention. Ms Williamson herself failed to seek it out.

7. On 9 November, the time for setting down for the appeal expired. On 14 November, the solicitors for Lanahmede attempted to file the appeal books and set the appeal down for hearing. A clerk in the Registry informed Ms Williamson that the Registry could not accept the appeal books or set the appeal down for hearing as the time for doing so had expired.

8. Lanahmede seeks an order extending the time within which to lodge the appeal books and to set the appeal down for hearing. Rule 95.11, sub-rule 3, provides that, where the appeal is not set down within the period of six months from the institution of the appeal, the appeal is automatically dismissed unless the court extends the time. The rule also allows for an application for an extension of the time within which to set the appeal down for hearing to be made after the period of six months has elapsed. Where the period of six months has already elapsed, the time will be extended only if special circumstances are demonstrated. It has also been held that in this particular context an extension of time may be granted pursuant to s 48 of the Limitation of Actions Act, 1936: Calvaresi v Lawson (1995) 184 LSJS 147.

9. The appeal was instituted on 8 May 2003. It was necessary, therefore, for the appeal books to be filed and the appeal to be set down for hearing on or before 9 November. As the solicitors had attempted to lodge the appeal books and set the appeal down for hearing on 14 November, the delay is a delay of five days only. The appellant has been aware since 9 May of the intention of Lanahmede to appeal from the decision of the District Court Judge. It is true, as Mr Holland in his careful submissions pointed out, that the solicitors for Lanahmede did not bustle about and proceed with appropriate diligence promptly to prepare the appeal books. It was not until late September that the request was made to agree the exhibits and certify the appeal book as correct.

10. As the above recitation of the facts discloses, there was also delay on the part of the solicitors for Mr Koch. It was some five to six weeks before they answered the letter of 22 September and in that time there had been at least one letter requesting an answer. It was not until Ms Williamson herself telephoned and spoke to Mr Nitschke that some kind of answer was received. There were subsequent delays on the part of the solicitors for Mr Koch. Thus, the matter is one in which there has been delay on the part of the solicitors for both parties.

11. It is well-established that a party should not necessarily be held responsible for the default of his solicitor. It is also well-established that, where a notice of appeal has been lodged and served and the respondent is aware of the intent of the appellant to prosecute an appeal, that the court will be more liberal in extending the time within which to set down the appeal: Jackamarra v Krakouer (1998) 195 CLR 516. Although the Justices of the High Court differed in their respective approaches, there is certainly a majority view that that is the position. Even if one adopts the view of the minority that it is necessary to consider whether the issues in the case are arguable, it is apparent in this case that they are manifestly arguable. It cannot be said that Lanahmede does not have reasonable prospects of success and Mr Holland properly acknowledged that fact. I have also had regard to the question of prejudice. That factor falls either way, that is to say, plainly the appellant is prejudiced if he cannot prosecute the appeal. Certainly the respondent is prejudiced if there is an extension of time.

12. In my view, the circumstances in this case are special and within the meaning of that phrase in Rule 95.11. If I am wrong in that conclusion, there are certainly proper grounds to extend the time under s 48 of the Limitation of Actions Act. In reaching that conclusion I am persuaded most by the fact that the attempt to set down the appeal is only five days out of time and the delay is one which was occasioned by default on the part of the solicitors for both parties. In the result, it seems to me that it would be a manifest injustice if the time were not extended when the solicitors for the respondent were themselves responsible in no small part for the delay in setting down the appeal for hearing. Had the solicitors for the respondents responded more promptly, it is most unlikely that the application would have been necessary.

13. For all of these reasons I am persuaded that it is appropriate to extend the time within which to set this appeal down for hearing.

14. There will be orders as follows:

    1.Extend the time within which to set this appeal down until 15 December 2003.

    2.The appellant shall pay the costs of and incidental to the making of the application and the affidavit in support thereof and the costs of 21 November 2003.

    3.The costs of today will abide the event of the appeal.