Lloyd v Tedesco
[2001] WASCA 288
•19 SEPTEMBER 2001
LLOYD -v- TEDESCO [2001] WASCA 288
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 288 | |
| Case No: | FUL:77/2001 | 14 SEPTEMBER 2001 | |
| Coram: | MASTER BREDMEYER | 19/09/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | KATHLEEN LOUISA LLOYD FRANCESCO TEDESCO |
Catchwords: | Appeal Extension of time to enter appeal Whether appeal devoid of merit |
Legislation: | Rules of the Supreme Court, O 63 r 7, r 10(5) |
Case References: | Jackamarra v Krakouer & Anor (1998) 195 CLR 516 Lloyd v Tedesco [2001] WASC 99 Lloyd v Tedesco, unreported; SCt of WA; Library No 970391; 5 August 1997 Muschinski v Dodds (1986) 160 CLR 583 Parij v Parij (1997) 72 SASR 153 Stowe v Stowe (1995) 15 WAR 363 Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant (Plaintiff)
AND
FRANCESCO TEDESCO
Respondent (Defendant)
Catchwords:
Appeal - Extension of time to enter appeal - Whether appeal devoid of merit
Legislation:
Rules of the Supreme Court, O 63 r 7, r 10(5)
Result:
Application allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr R J Butcher
Respondent (Defendant) : Mr C F McLeod
Solicitors:
Appellant (Plaintiff) : Butcher Paull & Calder
Respondent (Defendant) : Deacons
Case(s) referred to in judgment(s):
Jackamarra v Krakouer & Anor (1998) 195 CLR 516
Lloyd v Tedesco [2001] WASC 99
Lloyd v Tedesco, unreported; SCt of WA; Library No 970391; 5 August 1997
Muschinski v Dodds (1986) 160 CLR 583
Parij v Parij (1997) 72 SASR 153
Stowe v Stowe (1995) 15 WAR 363
Case(s) also cited:
Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196
(Page 3)
1 MASTER BREDMEYER: This is an application by the appellant filed on 23 August 2001 to extend the time for entry of an appeal and to amend the notice of appeal. The application for extension is made under O 63 r 7 of the Rules of the Supreme Court. Unless the Court otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal. This appeal was instituted on 15 May 2001. Entry should have been made by 7 August 2001. This application was lodged on 23 August 2001, so it is about two weeks out of time. It asks for an extension of 28 days. If that is granted, the appeal will be entered about mid-October which is a little over two months out of time.
2 In considering an application such as this, the Court is to look at the length of the delay and the cause of the delay. The Court is not normally required to look at the merits of the appeal unless the Court is satisfied that the appeal "is so devoid of merit that it would be futile to extend time": Jackamarra v Krakouer & Anor (1998) 195 CLR 516. The court must also consider prejudice to the defendant.
3 The period of the delay is not great. What were the reasons for the delay? The grounds of appeal were drafted by Mr Alan Camp who was counsel for the appellant (plaintiff) at the trial before Miller J. Mr Camp prepared the grounds without the benefit of the transcript. The appellant's solicitor spoke with Mr Camp on a number of occasions and asked him to review the grounds with regard to the transcript, but he proved unavailable. The solicitor then managed to brief Mr Chris Shanahan of counsel on 22 June 2001 and he wrote an interim report on 4 July 2001 and a final report on 27 July 2001 reporting that he thought the appeal had arguable merit. He drafted some amended grounds of appeal. In particular, he believed that the decision of the South Australian Full Court in Parij v Parij (1997) 72 SASR 153 provided support for the proposed new grounds of appeal. The solicitor asked the plaintiff to provide $5,000 on account of disbursements. He considered that the appeal book alone is likely to cost around $4,000 to produce, due to its size. The appellant deposed that she is aged 54 and has two children. She does not work. She is an invalid pensioner. She has no property other than her pension, some furniture and an old car. She spent a lot of money on the action which went through a number of expensive interlocutory processes. She had difficulty raising the $5,000 to cover basic disbursements and she says that is the absolute maximum that she can raise to cover the costs of the appeal. She said she is relying on the goodwill of her solicitors to progress the matter for her. I consider that she and her solicitor have offered reasonable grounds for the lateness.
(Page 4)
4 Is the appeal so devoid of merit that an extension of time for entry should not be allowed? I consider the appeal is not so devoid of merit that it would be futile to extend the time. I consider that the case of Parij helps the appellant. The trial Judge, Miller J, in his published reasons, Lloyd v Tedesco [2001] WASC 99, relied on the law as stated by the Full Court in Stowe v Stowe (1995) 15 WAR 363 and in the judgment of Owen J in this action on a pleading application, Lloyd v Tedesco, unreported; SCt of WA; Library No 970391; 5 August 1997. The Full Court in Stowe v Stowe, and Owen J in the interlocutory application in this case, were both expounding the law as it appears in the High Court decision of Muschinski v Dodds (1986) 160 CLR 583. Miller J considered that the plaintiff needed to show a common intention on behalf of the parties to engage in a joint endeavour, one purpose of which was - as pleaded - to provide future financial security and benefits to the parties. He also considered that proof of that joint endeavour required proof of actual intention to pool resources for the purpose of that endeavour. He said that that intention could be inferred.
5 Parij was not cited to Miller J. In that case, on facts quite similar to the facts in this case, the Full Court found that the plaintiff, a de facto "wife", was entitled to a one half beneficial interest in the home in which the parties lived which was in joint names. That finding is not so unusual as deserving of any special mention. (In the present case there was no property held in joint names.) But, more importantly, the Full Court also found that the plaintiff was entitled to a one fifth beneficial interest in two rental houses in the defendant's name, a one fifth interest in his accountancy practice, and in his superannuation. I should add that the two rental houses were purchased, the accountancy practice was started, and his superannuation was amassed, during the period of the de facto relationship. In relation to all those assets, the plaintiff did not make any financial contribution. Also the parties did not pool their resources. They did not have a common bank account. The plaintiff had worked for most of the period of the relationship and had made a financial contribution to family expenditure although her contribution was not as great as that of the defendant. In that case the plaintiff succeeded, although there was no common intention or joint endeavour that the rental houses, the accountancy practice and the superannuation would be held for their joint benefit. She succeeded because, as a homemaker and mother, she was able to look after the house and care for the children which enabled the defendant to work hard to amass those assets. In expounding the law in that case, based on Muschinski v Dodds, the Full Court of South Australia did not refer to any joint endeavour. They referred to the relationship (eg,
(Page 5)
- pp163 and 165), meaning the de facto relationship. I note that in Muschinski v Dodds, Deane J in the key passage at 620 referred to the "joint relationship or endeavour".
6 In the present case, Miller J found that the defendant's increase in wealth during the de facto period was due to his own hard work in the market gardens. In Parij the defendant's increase in wealth was due to his professional skill and hard work. He worked long hours. The Full Court however recognised that those long hours placed an extra burden on the plaintiff's role as homemaker and carer of the children and rewarded her by giving her a one fifth interest in those extra assets.
7 The respondent will be prejudiced by an extension of time. He is entitled to enjoy the fruits of his court win. Also, if the appeal fails, he is unlikely to recover the costs of his appeal because the appellant is impecunious. The appeal is expected to take a half day to argue. He also argues that the appeal is weak on points of law. I have said the appeal is arguable but otherwise I agree with those submissions. But I consider the injustice to the appellant in not granting the extension exceeds the prejudice to the respondent in granting it. Also, an application to the Full Court for security for costs under O 63 r 10(5) is a possibility. In such an application the impecuniosity of the appellant may amount to special circumstances justifying an order for security: Seaman 63.10.7.
8 I consider that the amended grounds of appeal are arguable and propose to allow the extension of time. I also propose to give leave to amend the notice of appeal. The appellant should pay the costs of this application in any event and I will so order.
9 It troubles me in this case that large sums of money are going to be spent on the appeal books. I realise that the appeal book index has been settled, nonetheless, given that the plaintiff failed on liability, I think the appeal should be argued on liability in the first instance. I suggest that the financial documents and the expert reports could be left out of the appeal books. If, and only if, the appellant succeeds on that would it be necessary to hear further argument including reference to financial documents etc. That argument could be heard on a later occasion with supplementary appeal books.
10 If the parties seek my assistance in this regard I will give it. I will give liberty to apply.
11 The orders will be:
(Page 6)
- 1. The time limited for entering this appeal for hearing is extended to and including the day following 28 days from the date of this order.
2. I amend the notice of appeal in terms of the minute of amended notice of appeal of 23 August 2001.
3. That amended notice to stand as the amended notice of appeal and service be dispensed with.
4. The appellant to pay the respondent's costs of this application, in any event.
5. Liberty to apply.
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