Lovell v Western Australian Police Union of Workers - [2009] WASCA 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LOVELL -v- WESTERN AUSTRALIAN POLICE UNION OF WORKERS [2009] WASCA 34

CORAM: STEYTLER P
OWEN JA
PULLIN JA

HEARD: 9 DECEMBER 2008

DELIVERED : 9 FEBRUARY 2009

FILE NO/S: CACV 5 of 2008

BETWEEN: AVON FRANCIS LOVELL
Applicant
AND
WESTERN AUSTRALIAN POLICE UNION OF WORKERS
First Respondent
PATRICK JAMES EDWARD STINGEMORE
Second Respondent
KOTT GUNNING (a firm)
Third Respondent
DENNIS WILLIAM HENLEY
HENRY HOOFT
KENNETH GEORGE HENNING
WILLIAM ROUND
ANDREW ALBERT TOVEY
EDWARD JOHN BILLING
Fourth Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :LOVELL -v- THE WESTERN AUSTRALIAN POLICE UNION OF WORKERS & ORS [2004] WASC 19
File No  :CIV 2034 of 2003, CIV 2077 of 2003

Catchwords:

Practice and procedure - Application for extension of time to lodge notice of appeal - Four-year delay - No satisfactory explanation for delay - Insufficient prospects of successful appeal - Turns on own facts

Legislation:

Limitation Act 1935 (WA)

Result:

Application for extension of time to appeal refused

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Ms K A Vernon
Second Respondent      :     Ms K A Vernon
Third Respondent          :     Mr S K Dharmananda
Fourth Respondents      :     Ms K A Vernon

Solicitors:

Applicant:     In person
First Respondent           :     Carol Adams
Second Respondent      :     Carol Adams
Third Respondent          :     Pynt & Partners
Fourth Respondents      :     Carol Adams

Case(s) referred to in judgment(s):

Commonwealth v Verwayen (1990) 170 CLR 394
Girando v Girando (1997) 18 WAR 450
Goninan v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
Hawkins v Clayton (1988) 164 CLR 539
Jackamarra v Krakouer (1998) 195 CLR 516
Lewandowski v Lovell (1994) 11 WAR 124
Lewandowski v Lovell [2006] WASCA 54
Mickelberg v The Queen (2004) 29 WAR 13
Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Willoughby v Clayton Utz [2007] WASCA 5

STEYTLER P: I agree with Owen JA.
OWEN JA: This is an application for an extension of time to appeal and the hearing of the appeal against a decision of the Master striking out the applicant's statement of claim in an action for damages. The Master also refused leave to amend the pleading thus bringing a summary close to the applicant's action.
The applicant is a journalist, author and publisher. Although he was represented by solicitors during the hearing from which this application arises, he has conducted the application as a litigant in person.

Background

In June 1982 an incident occurred that has become part of Western Australian folklore. By fraudulent means the Perth Mint was deprived of a large quantity of gold bullion. The incident is commonly referred to as the Perth Mint swindle. Three brothers (Raymond, Peter and Brian Mickelberg) were charged with, and convicted of, offences arising from the incident. Terms of imprisonment were imposed. Brian Mickelberg's convictions were overturned at an early stage but those relating to Raymond and Peter Mickelberg were not reversed until 2004: Mickelberg v The Queen (2004) 29 WAR 13.
The first respondent (the Police Union) is, as its name suggests, an industrial organisation representing the interests of police officers in this State. The second respondent was the General Secretary of the Police Union. The third respondent (Kott Gunning) was a firm of solicitors retained by the Police Union to advise it in relation to matters including those arising from the Perth Mint swindle. The fourth respondents were police officers involved in the Perth Mint swindle enquiries. So, too, were Donald Hancock and Anthony Lewandowski. Hancock died before this action was commenced. Lewandowski was a defendant named in the writ but he died after the hearing from which this application arises. Kott Gunning, through one of its partners (John Quigley), acted for the fourth respondents in the libel actions that I am about to describe.
In March 1985 the applicant published a book called The Mickelberg Stitch relating to the Perth Mint swindle and the convictions of Raymond and Peter Mickelberg. The book was critical of the conduct of the police officers involved in the enquiries. In particular, it alleged that the police officers had fabricated evidence against the Mickelberg brothers.

In March 1985 Lewandowski commenced an action against the applicant for libel. He sought and obtained an interim injunction preventing the applicant from selling or distributing the book. That injunction was later discharged but in May 1985 an interlocutory injunction to the same effect was granted. In support of the application Lewandowski swore an affidavit (the 1985 affidavit) in which he denied having fabricated evidence or that he had been involved in misconduct in relation to the Perth Mint swindle enquiries or the convictions of the Mickelberg brothers. In October 1985 the interlocutory injunction was discharged on appeal. At various times during 1986 (after the injunction had been discharged) Hancock and the fourth respondents each commenced actions for libel against the applicant.
In 1990 the applicant published a second book Split Image, concerning these events, but says he could not find a distributor prepared to handle the work. Also in 1990, the applicant commenced an action against the Police Union and the second respondent for libel arising from a television broadcast and an article published in a magazine. Another civil action was commenced in 1990 (the 1990 Action) against the Police Union. Subsequently, Kott Gunning and Quigley were joined as defendants and at a later time so too were Lewandowski, Hancock and Billing. On 19 August 1994 the 1990 Action was dismissed as against Kott Gunning and Quigley but it remained on foot as against the other defendants.
The libel actions by Lewandowski, Hancock and the fourth respondents went through a tortuous series of interlocutory steps that are described in Lewandowski v Lovell [2006] WASCA 54 [14] ‑ [23]. Eventually those actions (other than the one commenced by Billing) were consolidated and in 1992 a Master struck out the libel actions and ordered an inquiry into damages suffered by the applicant as a result of the injunction. On appeal (the 1994 Appeal) the Full Court reversed the Master's decision on 24 March 1994, thus reinstating the consolidated libel actions and overturning the order for an inquiry into damages: Lewandowski v Lovell (1994) 11 WAR 124.
In September 1996 a deed of settlement was entered into between the applicant, the Police Union and the second respondent as a result of which the applicant received $275,000 and the parties submitted to consent orders discontinuing:
(a)the libel actions brought by Lewandowski, Hancock and the fourth respondents against the applicant;
(b)the libel actions brought by the applicant against the Police Union and the second respondent;
(c)the 1990 Action; and
(d)other related actions and appeals.
In June 2002 Lewandowski swore an affidavit (the 2002 affidavit) in which he admitted to wrongdoing by him and by Hancock in relation to the Perth Mint swindle enquiries. The affidavit was used in the (ultimately successful) appeal proceedings launched by Raymond and Peter Mickelberg. Lewandowski also gave oral evidence in which he confessed to having fabricated evidence and given false testimony at the trials.
In September 2003 Lewandowski swore an affidavit (the 2003 affidavit) in which he confirmed his confession of wrongdoing and indicated he had not 'actually' given instructions to issue the libel proceedings. He said that 'there was a lot of animosity towards [the applicant] by the police generally and Hancock and I basically hated him and wanted to wipe him out financially so that he would drop off and keep quiet'. He also said that neither he nor Hancock had intended that their libel actions would ever go to trial. That affidavit was used by the applicant in proceedings in which he attempted, in effect, to have the 1994 Appeal re-heard to the extent necessary to have the consent orders discontinuing the consolidated libel actions set aside. This meant a partial setting aside of the 1996 settlement deed. Those attempts (which I presume were aimed at reviving the inquiry into damages suffered as a consequence of the interlocutory injunction) were unsuccessful: Lewandowski v Lovell (2006).
It should be noted that in neither the 2002 affidavit nor the 2003 affidavit did Lewandowski purport to implicate the fourth respondents in the wrongdoing to which he confessed.
In August 2003 the applicant commenced this action, essentially for loss of profits relating to The Mickelberg Stitch and Split Image (the 2003 Action). I will describe the pleaded case in more detail a little later. At this stage it is sufficient to say that the plaintiff alleges he is entitled to damages because of reliance by him (in entering into the 1996 settlement deed) on the false material in the 1985 affidavit. The applicant has particularised his loss and damage at an amount in excess of $5 million. In addition to the respondents to this application, the State of Western Australia was a defendant in the 2003 Action. The applicant accepts that a failure to give notice under s 6(1) of the Crown Suits Act 1947 (WA) of intention to commence the action is fatal to his cause of action against the State. I do not need to say anything further about that aspect of the litigation.
A statement of claim was appended to the writ of summons in the 2003 Action. On 12 September 2003 a separate statement of claim was filed. It is not marked up and I am not aware whether it contains any amendments. As will appear later, it probably does not matter a great deal because the strike out application from which this application emerges was fought on a different basis. But to the extent that it is necessary I will refer to the 12 September 2003 statement of claim rather than the original.
In September 2003 the State applied to strike out the statement of claim and dismiss the action as against it. On 3 October 2003 the first, second and fourth respondents filed a summons for leave to apply for summary judgment, alternatively for orders that the statement of claim be struck out as disclosing no reasonable cause of action. The applicant was then represented by solicitors. On 6 October 2003 default judgment was entered against the Police Union, the second and fourth respondents as they had not served a defence. On 7 October 2003 a summons was filed seeking an order that the default judgment be set aside.
In February 2004 the applicant's solicitors filed a minute of proposed substituted statement of claim (the Minute). The strike out applications by the State and by the other defendants and the summons to set aside the default judgment were heard together on 9 February 2004. The hearing proceeded on the basis of the Minute rather than on the filed statement of claim. The 2002 affidavit was before the Master but the 2003 affidavit was not. On 17 February 2004 the Master published reasons in which he concluded that there was a defence under the Limitation Act 1935 (WA) and that the action should be struck out. However, he afforded the applicant an opportunity to re-plead the case to see if the Limitation Act problems could be overcome.
On 23 and 31 March 2004 the Master heard the parties as to the orders that should be made. On the latter date he gave the applicant 21 days to file and serve a minute of any proposed statement of claim. That order was not complied with. On 4 May 2004 the matter was re-listed and the applicant's solicitors sought a further 21 days. The Master declined to grant a further extension and made the orders that are the subject of this application.
Although Kott Gunning had not taken a part in the strike out application (because, although named as a party, no cause of action was advanced against them in the Minute nor was relief sought) they made an oral application for orders striking out the claim as against them. The Master acceded to the oral application. The orders were not formally extracted until 20 September 2004 (Kott Gunning) and 14 December 2007 (the other defendants).
I should add that in 1985 the applicant had entered into a distribution agreement with Charles Thomas to distribute The Mickelberg Stitch. Thomas had issued a writ in similar terms to the 2003 Action and the Master's decision covered that action as well. There is no application by Thomas to overturn the rulings.
In September 2004 the applicant obtained a favourable opinion from a solicitor, James Edelman, as to the prospects of successfully appealing the orders made on 4 May 2004. In the ensuing months and years the applicant communicated with his solicitors about an appeal and then sought to retrieve his file for that purpose. No appeal was lodged. In April 2006 the applicant was provided with details of a favourable opinion from another solicitor, Neil Gentilli, on the prospects of a challenge to the 4 May 2004 orders. Again, no proceedings were instituted.
In July 2007 the applicant commenced a further action (the 2007 Action) against the first respondent, Quigley, the fourth respondents and the executors or representatives of the estates of Hancock and Lewandowski. The causes of action advanced in the 2007 Action had many features in common with those set out in the 1990 and 2003 Actions. In December 2007 the applicant received advice from another solicitor, Robert Nash, to the effect that the 2007 Action was destined to fail and that his best prospects of recovery lay in setting aside the 4 May 2004 orders. On 18 December 2007 the applicant consented to orders that the 2007 Action be dismissed and that he not bring further proceedings against the defendants without leave of the Court.
On 22 January 2008, almost four years after the date on which the orders complained of had been made, the applicant filed this application seeking an extension of time within which to appeal. He later applied for leave to adduce fresh evidence at the hearing of the application. At a directions hearing on 28 August 2008, an order was made that the application for an extension of time, the application for leave to adduce additional evidence and the substantive appeal be heard together. These reasons cover each of those matters.

The 2003 Action

I need now to give a little more detail about the 2003 Action. I will start with the 12 September 2003 statement of claim even though the strike out application was not fought on the basis of that pleading. The reason why I am doing so will become apparent shortly. In it the applicant pleads:
(a)the conduct of the police officers in the Perth Mint swindle enquiries;
(b)that the testimony, regarding the Mickelbergs' admissions and confessions, given by Lewandowski and Hancock at the Mickelberg trial was fabricated;
(c)his authorship of the books;
(d)the distribution agreement with Thomas;
(e)the knowledge of the first, second and third defendants as to the book and the distribution agreement;
(f)the fact that the Police Union and the second respondent wanted to take action against Lovell to stop the distribution and sale of the book and demanded that the applicant withdraw it from sale (something he refused to do);
(g)the issue by Lewandowski of his libel action and his applications for (and receipt of the benefit of) an injunction based on, and induced by, the 1985 affidavit, which was knowingly false;
(h)the recanting of the false evidence by Lewandowski in the 2002 affidavit and in his sworn evidence at the appeal hearing into the Mickelberg convictions; and
(i)the issue of the libel actions by Hancock and the fourth respondents.
A number of separate causes of action which the applicant wished to advance are then set out according to generic descriptions. The first is 'malicious prosecution'. The applicant alleges that the proceedings were instituted without proper and reasonable cause and were 'terminated in [his] favour' by the September 1996 settlement. They therefore constituted malicious prosecution as a result of which he has suffered damage.
Secondly, the proceedings were instituted maliciously and solely or predominantly for an ulterior motive, namely to conceal the criminal conduct of the police officers and with no intention that they be pursued to trial. The institution and maintenance of the proceedings was facilitated by the Police Union by way of the levy on members. The particulars of malice relate to events in 1985, 1986, 1987 and 1989.
Thirdly, the first to fifth defendants, through Quigley, intimidated and coerced Thomas with the intention of causing harm to the applicant and causing Thomas to break the distributorship contract, again causing damage. The particulars of the events amounting to intimidation show that the events occurred in 1985.
Fourthly, the 'apologies' which Thomas, by reason of the threats and intimidation visited on him by the defendants, was forced to publish in March 1985 included injurious falsehoods about the applicant thereby caused injury and damage to him. Fifthly, the conduct of the defendants, through Quigley, caused about 850 booksellers to break their contracts with Thomas, thus causing loss and damage to the applicant.
Finally, the applicant advances a claim based in conspiracy. He pleads that from 8 March 1985 there was a conspiracy (in force until September 2002 when Lewandowski gave evidence in the Mickelberg appeal) to injure the applicant. The object of the conspiracy was to 'cover up the wrongdoing of Hancock, Lewandowski, the fourth respondents and the Police Service of Western Australia'. The conspiracy is said to be between the Police Union, the second respondent, Quigley, Hancock, Lewandowski and the fourth respondents and to arise from an agreement between them 'to use the legal processes against [the applicant] without inquiry or regard as to the truth of his allegations and with contumelious disregard for his rights'. Particulars of the agreement said to underpin the conspiracy include:
(a)that on or before 8 March 1985 the first to fifth defendants and Hancock agreed to take action against the applicant so as to suppress the book;
(b)the use of the legal process was unlawful and there was no legal interest; and
(c)the common objective was to oppress the applicant by use of the legal process so as to avoid scrutiny of the police officers' conduct.
In the prayers for relief, the applicant claims declarations that the Police Union is vicariously liable for the conduct of the second respondent, Kott Gunning is vicariously liable for the conduct of Quigley and the State is vicariously liable for the conduct of the fourth respondents. He seeks special damages particularised at over $5 million, general damages and other relief.
The Minute (dated February 2004) is expressed to be a substituted (rather than amended) statement of claim. In it the applicant pleads much of the same material, although differently worded, from the 12 September 2003 statement of claim as set out above in pars (a) to (i). The applicant then pleads:
21.At all material times up to and including the date of execution of [the 1996 settlement deed], [Lewandowski] intended that the [applicant] should act on the false statements contained in [the 1985 affidavit].
22.At all material times up to and including September 1996 [Lewandowski] intended that:
22.1this Honourable Court should act in reliance upon the false statements contained in [the 1985 affidavit] in maintaining the injunction against the [applicant];
22.2the [applicant] should act in reliance upon the false statements contained in [the 1985 affidavit] in continuing to be bound by the terms of the injunction granted by this Honourable Court and being obliged to defend [the consolidated libel proceedings].

In par 23 the applicant pleads that by reason of Lewandowski's conduct in swearing the 1985 affidavit containing statements he knew to be false the applicant has suffered loss and damage, particularised in the same way as it was in the original statement of claim. In pars 24 and 25 he alleges that on 20 September 1996, 'in further reliance on the terms of [the 1985 affidavit]', he entered into the 1996 settlement deed and, as a result, suffered loss and damage due to Lewandowski's conduct in swearing the false affidavit and obtaining the injunction.
In par 27 the applicant pleads that the Police Union, alternatively, the second respondent, is vicariously liable for the impugned conduct of Lewandowski. Finally, par 28 alleges that from the time the libel actions were consolidated (sometime in 1988 or 1989) the fourth respondents were joint tortfeasors with Lewandowski in that they continued to take the benefit of the injunction granted in reliance on the (false) 1985 affidavit. In the prayers for relief the applicant claims damages, costs and interest against the Police Union, the second and fourth respondents and the State.

The February 2004 hearing

In his reasons for decision the Master referred to the Minute and said that at the hearing of the applications, counsel for the applicant indicated there would be no objection to the default judgment being set aside. Counsel also sought leave to amend the statement of claim in terms of the Minute. Counsel for the defendants objected to leave being granted to the applicant to amend because the problems with the earlier statement of claim which had led them to move for judgment were still present in the Minute. The Master said that, with the consent of all parties, the matters proceeded on the basis that:
(a)the applicant was moving to amend the statement of claim in terms of the minute;
(b)the issue to be determined at this stage was whether or not the actions were statute barred under the provisions of the Limitation Act;
(c)if he determined that to be the case then each action would be dismissed and there would be judgment for the defendants;
(d)if he determined that the applicant had an arguable case in relation to the limitation question, the defendants would be given the opportunity to consider the minute further with a view to raising any objections they may have to the pleading.
The Master commented that this was 'not an entirely satisfactory method of proceeding'. He was, however, persuaded that the limitation question was a discrete issue and could be dealt with at the hearing. So far as concerns Kott Gunning and Lewandowski, the Master made this comment:
Neither [Kott Gunning nor Lewandowski] were represented at the hearing. So far as [Kott Gunning] is concerned, the minute makes no claim against them. Counsel for the [applicant] advised that an application for pre‑action discovery was to be made and once discovery was provided further consideration would be given as to whether action would be taken against [Kott Gunning]. With respect to [Lewandowski], a claim is made against him, but he is impoverished and of no practical interest to the [applicant]. His position was not addressed during the course of the hearing and, for the present, his position with respect to the action can be put to one side [4].
The concept of 'pre‑action' discovery in proceedings that have already been commenced is novel. Be that as it may, Kott Gunning were aware of the proceedings and, as I have said, made an oral application (successfully) for orders striking out the action insofar as it related to them.
The Master had before him the 2002 affidavit but not the 2003 affidavit. The latter is the subject of the application for leave to adduce additional evidence. I will return to that question a little later.
In the hearing before this Court the applicant said that although he was present at the February 2004 hearing he was unaware of the contents of the Minute or of the decision apparently taken by counsel to abandon the 12 September 2003 statement of claim. There is, however, no suggestion that the Master's description of the course the hearing would take is other than a faithful reflection of the agreement reached between counsel.

The Master's reasons and the grounds of appeal

The Master outlined the pleadings and accepted (on the basis of the 2002 affidavit) that the 1985 affidavit was false. He also said that it was important to note two things. First, that the applicant alleged that he suffered financial loss as a consequence of the proceedings initiated by Lewandowski and that he suffered loss and damage on entering into the deed of settlement. Secondly, the Police Union, the second and the fourth respondents were said to be vicariously liable for what Lewandowski had done. The limitation period should be the same for claims brought against Lewandowski and all of the other defendants. No argument to the contrary had been advanced by any of the counsel then appearing.
The Master characterised the claim brought by the applicant against Lewandowski as being the tort of deceit. He outlined in a way that is unexceptional the elements of the tort and noted the pleading that loss and damage was suffered on the applicant entering into the 1996 settlement deed. The defendants argued that the cause of action arose when the 1996 settlement deed was signed. It was at that time the loss was suffered and that therefore was the date when the applicant's cause of action crystallised. Counsel for the applicant advanced two arguments. First, the deceit by Lewandowski was ongoing; it was a continuous act. It was only when Lewandowski appeared before the Full Court and admitted that his affidavit was a fabrication that the cause of action was complete. Secondly, the tortious act was concealed by Lewandowski and the applicant was not in a position to know that he had a good cause of action. It was not until Lewandowski gave evidence in 2002 that the applicant became fully aware of his right to proceed. Therefore, the limitation period did not begin to run until 2002.
The first argument raised by counsel for the applicant did not find favour with the Master. He noted that it was at odds with the pleaded case. He went on to say that in any event a cause of action in deceit is complete when a loss is suffered. All the losses particularised in par 23 that the applicant says he suffered and which he was precluded from recovering by the 1996 settlement deed were sustained prior to the settlement. They were amounts which the applicant alleged he would have recovered had he proceeded with his actions against the defendants. As at 20 September 1996 he had a chose in action – a right to proceed to recover losses allegedly sustained. When he accepted a settlement which was substantially less than what he alleged he would have recovered had he proceeded, the loss was sustained and the cause of action was complete. Accordingly, that was the date upon which the applicant's cause of action arose. The Master went on to say that even if it were accepted that there was a continuing deceit until the Full Court hearing, there is no plea that any loss was suffered beyond that suffered at the time the deed of settlement was entered into. That was the critical date and it was more than 6 years before the writ was issued.
In advancing the second argument, counsel for the applicant relied on what was said by Deane J in Hawkins v Clayton (1988) 164 CLR 539, 590; namely, that if a wrongful act 'not only causes unlawful injury to another but, while its effect remains, effectively precludes that other from bringing proceedings to recover the damage to which he is entitled, that other person is doubly injured. There can be no acceptable or even sensible justification of a law which provides that to sustain the second injury will preclude recovery of damages for the first'.
The Master distinguished Hawkins v Clayton on the facts. He pointed out that in the book the applicant had said that Lewandowski, with others, had fabricated the evidence against the Mickelbergs and that it was 'reasonable to assume he had some evidence for making that claim'. He went on to say:
It is true that the evidence of [Lewandowski] contained in [the 1985 affidavit] provided a substantial impediment to the [applicant] succeeding in [his] claim. But what was concealed from the [applicant and Thomas] was not their right to bring proceedings for damages. Indeed, that is precisely what they did. What was concealed from them was the true nature of the evidence that could be given by [Lewandowski]. That is an entirely different thing [20].
The Master concluded that the limitation point was good. As the argument had proceeded on the basis of the Minute, leave to file the substituted statement of claim was refused and the actions struck out. He did, however, afford the applicant an opportunity (that was not taken) to bring in a further amended or substituted statement of claim.
The grounds of appeal are relatively confined and involve three propositions.
1.The Master erred in characterising the applicant's claims as being based on the tort of deceit when he should have found that they invoked the doctrine of deceit in equity and were not statute barred.
2.If there were limitation bars to the applicant's claims the Master should have found it was reasonably arguable that the defendants were estopped from what would be an unconscionable reliance on the defences because of:
(a)fraudulent concealment of the causes of action; or
(b)fraudulent maintenance of false evidence to create a false assumption that false evidence would be relied on by the defendants in defence of the applicant's claims.
3.The Master should have found that it was not clear that the relevant limitation period had expired.
In relation to the third point, the Master recognised that limitation questions should only be determined in interlocutory proceedings in the clearest of cases: Wardley Australia Ltd v The State of Western Australia(1992) 175 CLR 514, 533-534. He opined that in this case the position was plain. The key issue was identifying the date upon which the damage was suffered and that fell to be determined on the pleadings. That point is either good, or it is not. I do not think I need give any further attention to the third issue.

An extension of time to appeal

General principles

The applicant seeks an indulgence by way of an order extending time within which to institute the appeal. The principles on which a court proceeds in such an application are not in dispute. The discretion is a broad one and it ought not be hide‑bound by strict rules. Nonetheless, in deciding whether to exercise the discretion to extend time within which to lodge a notice of appeal the court usually takes into account four main factors; namely, the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondents: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [5] ‑ [9].
Without detracting from the proposition that the discretion is a broad one, there are some other relevant considerations. In relation to the first two of those points, the longer the delay the closer the court will look at the reasons for the delay. Time limits should always be adhered to but as the period of time between the accrual of a right and its exercise increases, the party concerned needs to be even more assiduous in complying with limits: Willoughby v Clayton Utz [2007] WASCA 5 [40]. The third of those points (whether there is an arguable case) is, I think, more accurately phrased as the prospect of the applicant succeeding in the appeal: Willoughby v Clayton Utz [1]. It has to be borne in mind that what is in issue here is the prospects of the applicant succeeding in the substantive appeal; not the merits of his claims against the defendants in the 2003 Action.
Finally, there is some authority for the proposition that the fourth of those points is a little broader and encompasses a consideration of the consequences for the parties (not simply the respondents) of the grant or refusal of an extension of time: Girando v Girando (1997) 18 WAR 450, 454. In a case such as this (where an action has been struck out as being statute barred) the effect on an applicant of a refusal to extend time will inevitably be severe. A court must be mindful of that but it cannot be the predominant or overriding factor. It is one of the elements that falls to be considered, along with all the others, in what is often a difficult balancing exercise.

The length of the delay and the explanation for the delay

The notice of appeal was lodged almost four years out of time. That is an extremely long period by any standard. The delay is gross. In seeking to explain the delay the applicant relies on an affidavit he swore on 5 February 2008. Before I go to the detail of the affidavit, I need to place the explanations in context by attempting a broad summary of the applicant's arguments as enunciated at the hearing.
The applicant is critical of the conduct of his then solicitors, Bennett & Co, and counsel, Martin Bennett. While he seems to have been aware of the proposal to amend the statement of claim, he says he was not aware until after the hearing before the Master of the content of the Minute. Nor was he aware of the proposal to abandon the claim as set out in the 12 September 2003 statement of claim and nor, had he been aware, would he have agreed to that course of action. In the hearing before this Court the applicant described the Minute as 'a dog's breakfast' and as 'probably the worst drafted document ever put before a court'. I mention this not to associate myself with those comments (although there are obvious deficiencies in the pleading) but to put beyond doubt that the Applicant does not wish to rely, in this application, on the case advanced in the Minute. The difficulty is that this leaves the Court in a position where it does not know with any degree of precision what case the applicant would bring forward.
The applicant says that he always wanted to appeal and thought that the solicitors had it in hand. He says he was not aware that time was running against him. He had difficulty in communicating with his solicitors and, once he had determined to obtain other assistance to pursue the appeal, in obtaining his files. He now wants to return to the status quo, that is, to set aside the Master's orders and to re-plead his case.
This Court has not been asked to deal with the arguments as between the applicant and his former solicitors and, indeed, it would be entirely inappropriate to do so in this application. Nothing contained in these reasons should be taken as indicating that I have formed a view, one way or the other, in relation to those matters.
There is an obvious practical difficulty. The applicant accepts that the Minute is deficient. But the Master can hardly be criticised for deciding the limitation point on a basis that had been agreed between counsel and then presented to him as the process the parties wished to follow; namely, the cause or causes of action set out in the Minute. This Court is confronted with a similar difficulty. Even if it is legitimate and appropriate to ignore the Minute, it is not clear exactly what cause or causes of action would be advanced and against which the limitation questions would fall to be determined.
In the light of those general comments I turn now to the material contained in the applicant's affidavit. For efficiency I will not say on each occasion that what I am about to recite represents what the applicant says or alleges in his affidavit. The applicant obtained litigation funding to assist in prosecuting the 2003 Action. The solicitors were instructed. He told the solicitors he wanted to receive copies of all documents and correspondence, a request that was not honoured. The applicant provided the solicitors with a copy of the 2003 affidavit but it was not used at the February 2004 hearing. Shortly after the hearing the applicant left for Thailand. While he was there he received from the solicitors by facsimile transmission a copy of the Master's reasons. He telephoned the solicitor and was told the judgment was flawed and an appeal would be lodged immediately. When he returned from Thailand he telephoned the solicitor to enquire about the appeal. He was told that time for lodging the appeal did not commence to run until the orders were extracted.
He says that despite many calls during 2004 and 2005 he could not speak to the solicitors or get them to return calls. On 4 April 2005 the solicitors sent him a copy of a letter from Pynt & Partners (the solicitors for Kott Gunning) referring to the 'order striking out the statement of claim and dismissing the action against [Kott Gunning]' and enclosing a draft bill of costs for comment within 14 days. On 21 April 2005 the applicant responded to the solicitors saying, among other things, that he noticed the draft bill included charges for appearances in court in March and May 2004, attendances of which he had been unaware. He said:
[W]e can only presume that orders were made then relating to the final disposition of the matter rather than as related to us orally by your office that there was no impediment to a late appeal as no orders had been made and time did not commence to run until such time as those orders had been made and extracted.
There is no evidence of a response by the solicitors to that letter. On 19 October 2005 the State Solicitor wrote to Bennett & Co concerning their costs. The letter referred to previous advice from Bennett & Co that they would be filing notice of cessation to act for the applicant and asking for the applicant's contact details. This letter was forwarded to the applicant on 7 November 2005 with a request that he advise the State Solicitor that all future correspondence should be addressed to the applicant personally. On 10 November 2005 the applicant responded:
Over an extended period of time … I have phoned and visited your office attempting to have our files returned to us for the purpose of initiating an appeal from the decision of Master Sanderson striking out the action. We have received no correspondence about your ceasing to act … [C]an you please return our files so that we can initiate an appeal forthwith.
Following further correspondence between the State Solicitor and the applicant about costs, the applicant wrote to Bennett & Co on 29 November 2005 reiterating his request for return of the files 'so that we could lodge an appeal'. Early in 2006 the State Solicitor renewed the demands for costs. On 22 March 2006 the applicant wrote to a person who had been involved in the litigation funding arrangements seeking assistance to have the State Solicitor's demands met. In the course of the letter he said:
Even though the action was struck out by Master Sanderson in February 2004, an appeal was to be immediately instituted on grounds which were subsequently endorsed by [Edelman]. The appeal did not eventuate.
…
In the meantime, Mr Bennett has refused to return our files despite frequent requests, thus preventing us from initiating appeals, albeit out of time.
On 11 July 2003 the applicant had filed the motion in the 1994 Appeal. That matter was heard in March 2006 and the decision, adverse to the applicant, was handed down on 31 March 2006. It may or may not be a coincidence that a couple of weeks later (10 April 2006) the applicant received the Gentilli opinion on the prospects for an appeal against the Master's decision. There is no evidence of steps taken by the applicant following, or in respect of, the Gentilli advice.
The affidavit and the agreed chronology are silent as to further events between April 2006 and July 2007 that are relevant to explain the delay, save for the following matters.
1.There was a continuance of the correspondence between the State Solicitor and the applicant concerning costs.
2.The applicant expended time and effort in preparing an application for special leave to appeal to the High Court against the 31 March 2006 decision of this Court. The applicant says the application was not filed because he could not afford the fees.
3.He also spent considerable time working on an action against another solicitor for negligence in failing to give a notice under the Crown Suits Act for the purposes of the 2003 Action.
4.Since February 2004 he has had no formal employment, his income is small and intermittent and he has few other resources. He has found it impossible to retain solicitors (save for odd occasions on which he has been able to engage counsel for specific purposes by obtaining personal loans) or obtain litigation funding. He has therefore been forced to act in person.

In July 2007 he commenced the 2007 Action. The statement of claim filed in that action covers much of the ground asserted in the 2003 Action. In December 2007, the applicant searched the court file for the 2003 Action and could not locate an order striking out the application as against the Police Union, the second and the fourth respondents. In fact, it had been extracted in the days immediately preceding the day of the search and a copy was served on him shortly thereafter.
One of the annexures to the applicant's affidavit is an email from Nash dated 17 December 2007 advising that the 2007 Action was 'doomed to be struck out against all defendants in its entirety on the grounds that it is an abuse of process'. Nash went on to say: 'I think your only chance of keeping this litigation alive is by appealing the decision of Master Sanderson which will be very difficult in view of the delay'. On 18 December 2007 the 2007 Action was dismissed by consent. On 22 January 2008 this application was filed.
What is to be made of all of this? There is little doubt that the applicant was minded to appeal against the Master's orders. He was advised on at least three occasions (by Bennett & Co in February or March 2004, by Edelman in September 2004 and by Gentilli in April 2006) that an appeal might be successful. Sometimes a person applying for an extension of time says that she or he received advice initially that there were no grounds on which to appeal but was later given a more favourable opinion. That is not this case.
Even if it be accepted that the applicant initially believed time did not commence to run until the orders were formally extracted he could not have been of that mindset after April 2005. That is a proper inference to be drawn from his letter to Bennett & Co of 21 April 2005. In the period between July 2003 and March 2006 he was pursuing the attempts to revisit the 1994 Appeal and, through that mechanism, partially setting aside the 1996 settlement deed and reviving the consolidated libel actions. When this Court dismissed his motion on 31 March 2006, those attempts came to an end. He then received the Gentilli advice. By this time he knew that the time for lodging an appeal had expired.
In the letter of 22 March 2006 to the person concerned with the litigation funding, the applicant mentioned the difficulty he had encountered in obtaining his files and in initiating an appeal. But the evidence is silent as to any further steps taken by him in that respect. Nor has he described any other steps he took (or might have taken) after receipt of the Gentilli opinion to set an appeal process in motion (with or without the Bennett & Co files). Save for his impecuniosity and his concentration on the High Court special leave papers and the negligence action, there is no explanation for the further delay between April 2006 and July 2007. What follows is a further period of delay (6 months) during which he commenced and pursued the 2007 Action, rather than applying himself to the appeal process. He only reverted to the latter on receipt of advice that the former was doomed to failure.
Given all that has happened in relation to the Perth Mint swindle and its aftermath I have sympathy for the position in which the applicant finds himself and with his determination to pursue a remedy. I do not underestimate the financial and practical difficulties that confront a litigant and that may compel him or her to act in person. But I am here dealing with a specific process. It involves an appeal against an order that was regularly made and under which rights have accrued to other parties. The applicant seeks an indulgence from the Court and it is a pre-requisite to maintaining the appeal that he provide an explanation for the delay in commencing the proceedings. While some reasons have been proffered for the delay immediately after February 2004, there are very long periods for which there is no satisfactory explanation. This is particularly so in and after 2006. Knowing that time had expired the applicant chose to pursue other avenues to right the wrongs he believes have been committed against him. These are considerations that militate against the grant of the indulgence he seeks.

The merits of the appeal

I turn now to consider the prospects of success in the substantive appeal. The applicant did not seek to amend the grounds of appeal contained in the notice of appeal and it is to them that attention must be given.

First ground: deceit in tort or in equity

In the first ground of appeal the applicant contends that the Master should have found that the claim, although founded in deceit, was a claim in equity rather than in tort. There can be no doubt that a six year limitation period applies to a claim for deceit at law. In the grounds of appeal the applicant did not challenge the finding that the tort was complete once damage had been suffered and that the relevant date was, therefore, the date on which the 1996 settlement date had been entered into. If that be the case the claim (initiated in August 2003) was statute barred. It seems to me that on the basis of the claim as pleaded in the Minute (and for that matter as set out in the 12 September 2003 statement of claim) the damage does sound, at the latest, as at the date on which the 1996 settlement deed was entered into. I say 'at the latest' because there is an alternative argument that the damage accrued in 1985. But as the strike out application was fought on the grounds that the damage flows from entry into the 1996 settlement deed, I am content to proceed on that basis.
There is, of course, a distinction between deceit at law and deceit in equity. The latter is a species of equitable fraud and it may be that it is not subject to a limitation period. But that will not necessarily be so. In cases where the statute does not prescribe a time bar, a limitation period may still arise by analogy. When claims are made in equity that are not the subject of a statutory prescription and the claims correspond to a remedy at law that could be subject to a statutory time bar, then a court of equity, in the absence of fraud or other special circumstances, will adopt by way of analogy the same limitation for the equitable claim: Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177, 184 (Kitto J).
There is, as I have mentioned, a practical difficulty because the application before the Master was fought on the basis of the Minute and the applicant approached the hearing before this Court conceding that the Minute did not describe the claim he wished to bring. It has to be borne in mind that the applicant was not shut out, as at 17 February 2004, from revisiting the pleading to cure the defects that had been identified. Right up to 4 May 2004 he could have done so. Where the fault lies, or might lie, for that failure is not something that can be determined in this application. The fact is that there is no fresh minute or draft pleading that spells out exactly what cause or causes of action the applicant wishes to bring and how they might invoke the equitable jurisdiction. Without that information it is not possible to say what limitation period should apply and, as a consequence, whether an appeal (if allowed) would be nugatory because the proposed substituted cause of action would be similarly barred. Nor is it possible to say whether, even if there is a limitation period by analogy, a court would necessarily apply it.
All that can be said with certainty is that the applicant's causes of action as advanced in the Minute sound as deceit at law. There is nothing in the pleaded facts or in the prayers for relief that would permit a construction that the claims were intended to, and do, invoke the equitable jurisdiction of the court. Even if the applicant is permitted (for the purposes of this application) to revert to the 12 September 2003 statement of claim, the same result would flow. There is, therefore, no basis on which it can be said that the Master erred in failing to deal with the claim as if it were a deceit in equity.

Second ground: fraudulent concealment

The second ground is advanced as an estoppel. The applicant contends that it would be unconscionable to permit the defendants to rely on the limitation point because they had fraudulently concealed the causes of action or fraudulently maintained false evidence to create a false assumption that false evidence would be relied on to defeat the applicant's claims.
This is, as I have said, based on the dicta of Deane J in Hawkins v Clayton. A executed a will in which she appointed B as executor. A died but the solicitor concerned did not advise B that he had been appointed executor until more than six years after the date of death. Meanwhile, the main asset of the estate had wasted. Shortly after being advised of the executorship, B took out a grant of probate and commenced an action against the solicitor for negligence. By majority, the Court held that the solicitor owed a duty of care to B and that the duty had been breached. The next question was whether the action was statute barred.
Brennan and Gaudron JJ held that the cause of action had not accrued until B had taken a grant of probate. The action was, therefore, commenced within time. Deane J held that the cause of action had not accrued until the expiration of the period in which the wrongful act itself effectively precluded the bringing of the proceedings. It can be seen that the decision does not relate to an estoppel. Rather, it pinpoints the accrual of the cause of action and relates directly to the application of the relevant limitation period. The ground of appeal as drafted is closer to Commonwealth v Verwayen (1990) 170 CLR 394. But as the argument before the Master centred on Hawkins v Clayton, I will treat the ground as going directly to the limitation question. I will have a little more to say about estoppel after I have done so.
At the risk of tedious repetition, the real complaint which the applicant wishes to agitate is not to be found in the Minute. To the extent that it is possible to glean it from his oral submissions, I understand the applicant to contend that Lewandowski, Hancock and the fourth respondents were parties to an agreement in 1985 to suppress the book so as to prevent a proper enquiry into the conduct of the police officers. They decided to do so by an unlawful use of court process and as a consequence unjustly interfered with the applicant's legitimate rights. The agreement represented a conspiracy. The Police Union, the second respondent and Kott Gunning were, by various means, parties to or tied into the conspiracy. The applicant suffered loss and damage as a direct result of the conspiracy and all defendants are liable to compensate him accordingly.
The applicant points to the 1985 affidavit in which Lewandowski denied having fabricated evidence. He recanted in the 2002 affidavit, in his oral evidence before the Full Court and in the 2003 affidavit. The applicant then refers to the affidavits sworn by the fourth respondents in November 2003 in support of their summary judgment application in the 2003 Action. I will use the affidavit of Henley as being representative of the approach taken to this issue by the fourth respondents. Henley says:
(a)the evidence he gave at the trial of the Mickelberg brothers was true and correct in every particular;
(b)when he read The Mickelberg Stitch he was angry as it made him look incompetent and dishonest;
(c)Hancock approached the Police Union to see if defamation proceedings could be brought against the applicant;
(d)he was not after money - all he wanted was an apology and to stop the book being published and further impacting on his reputation;
(e)there was an initial meeting with the Police Union, the second respondent and Quigley and police officers including the fourth respondents;
(f)there were subsequent meetings of the police officers, some of which he attended;
(g)he relied on Quigley for advice;
(h)he believed he had been defamed in the book and the action was commenced for that reason and no other; and
(i)it was always his intention to proceed to trial in relation to the defamation action - he is not sure why it did not go to trial.
The applicant also points to the fact that in their affidavits sworn in April 2008 in opposition to this application the fourth respondents confirm the accuracy of their November 2003 affidavits. This, the applicant contends, is the basis on which he is now able to bring forward the conspiracy claim. As he put it in oral submissions (ts 66 ‑ 67), in the affidavits sworn in November 2003, the fourth respondents
themselves put themselves into the conspiracy to injure by saying at a time which I didn't know at a meeting about which I didn't know. They all attended, they were all angry. They wanted to do something about me. They wanted to stop the book and they all unanimously decided that they were going to take action of which Lewandowski was the first … As a fact these parties bring themselves into a conspiracy … So the state of knowledge in November [2003] as a factual basis defeats the limitation period and also defeats the prejudice argument … In the civil jurisdiction they ever put themselves into the frame in their own words in ways that I could not ever have known in 85, 86, 87 - and go on and on - years. They concealed it until November [2003].
In summary, the applicant says that it was not until he received the 2003 affidavit and saw the affidavits of the fourth respondents sworn in support of the summary judgment application that he became aware of the agreement between the police officers and of his ability to sue in relation to it. That material had been deliberately concealed from him and either the limitation period had not commenced to run until that time or the defendants should be estopped from relying on the limitation defence.
In my view the applicant's contentions fail to draw the necessary distinction between a cause of action and the evidence on which the plaintiff proposes to rely to establish the cause of action. The Limitation Act relates to causes of action, not to evidentiary material, and time begins to run once the cause of action has accrued. The applicant may not have known of the precise material in the affidavits but the history of the dispute over time renders it difficult for him to maintain that he did not know of the agreement on which he now wishes to assert the conspiracy claim.
In a statement of claim dated 25 March 1993 filed in the 1990 Action the applicant pleads, among other things:
(a)on or about 8 March 1985 the Police Union, Lewandowski, Hancock and the fourth respondents entered into an agreement the purpose of which was to prevent the applicant from distributing the book to the public;
(b)the terms of the agreement included that solicitors be instructed to take defamation proceedings against the applicant and to take whatever other action was necessary to limit its circulation and distribution;
(c)pursuant to the agreement Quigley and Kott Gunning were instructed to (and did) intimidate and coerce the applicant;
(d)pursuant to the agreement Quigley threatened, intimidated and coerced the book distributor and he did so unlawfully, maliciously and wrongfully and with intent to injure the applicant;
(e)by reason of the threats, intimidation and coercion the applicant has suffered loss and damage;
(f)each of the relevant police officers issued defamation proceedings with no intention of bringing the actions to trial but for the collateral purpose of preventing the distribution of the book, thereby concealing their participation in unlawful acts and deferring investigation into those acts.
The reason I have gone to some lengths in describing these aspects of the pleading is to indicate that in 1993 the applicant had sufficient knowledge to advance as a material fact on which he intended to rely an agreement between the relevant defendants to use unlawful means to suppress the book and to injure him. He does not use the word 'conspiracy' in the 1990 Action but he does in the 12 September 2003 statement of claim in the 2003 Action. And it is a conspiracy based on agreement that is expressed in similar terms to that enunciated in the 1993 pleading. I cannot, therefore, accept the applicant's contention that the facts underpinning a cause of action in conspiracy based on the agreement between the police officers were not known to him until late 2003. The evidence that the police officers might give at trial about the content of the agreement may not have been known but the essential facts were. It is the essential facts, not the evidentiary detail, that is relevant to determining when a cause of action accrues for purposes of the limitation statute.
The applicant's reliance on the November 2003 affidavits is also a little curious in that the fact of the meeting and of the conspiracy was the subject of the original pleadings in the 2003 Action.
It is not difficult to see how the applicant would be encouraged by both the 2002 affidavit and the 2003 affidavit in advancing the ground of appeal about the fraudulent maintenance of false evidence. But it has to be said that in those affidavits Lewandowski's confession of wrongdoing implicated only himself and Hancock. Save for the comment that that there was animosity to the applicant by 'police generally', the affidavit makes no specific reference to any of the other individuals who are respondents to this appeal. There is no new material in the 2003 affidavit that binds the other police officers who are the fourth respondents nor is there anything new that implicates the Police Union, the second respondent or Kott Gunning.
The same can be said for the material on the affidavits sworn by the fourth respondents in November 2003 in support of the summary judgment application or in early 2008 in this application. Save for references to 'the agreement' (with which I have already dealt) the fourth respondents maintain the stance that the evidence they gave at the trial of the Mickelberg brothers was true. In this application the Court is not determining whether the fourth respondents would, at trial, prevail in relation to that argument. But there is little support for the applicant's argument that, in answer to a limitation point, the true position of the police officers (other than Lewandowski and, through him, Hancock) was fraudulently concealed from him until the 2003 affidavit.
It seems to me, therefore, that the applicant would have considerable difficulty in establishing his case in the substantive appeal. Put in a slightly different way, the prospects of him succeeding in the appeal are not strong. In relation to the second ground of appeal, I do not think it matters whether the challenge is looked at strictly in terms of the limitation period or as an estoppel preventing the defendants from asserting the statutory bar.

Prejudice

The last area of enquiry in the extension of time application is whether the respondents would be prejudiced by the grant of an indulgence.
The respondents point out that this dispute has been going on for over 20 years. They have an undoubted interest in bringing the litigation to finality. In their written submissions the Police Union, the second and the fourth respondents make the point that in December 2007 the applicant consented to orders dismissing the 2007 Action and preventing him from commencing any further originating process against them without leave of the court. The defendants intended once and for all to bring an end to the litigation in the future. Yet the applicant consented to those orders knowing that he was about to try to appeal against the Master's decision and to revive the 2003 Action. They also point out that since the 1994 appeal decision the applicant has taken no steps to seek damages pursuant to the undertaking given by Lewandowski for the 1985 injunction.

In an affidavit worn on its behalf, the Police Union says that it has already spent $850,000 on legal costs and on the 1996 settlement and that the litigation is an enormous drain on its resources. The continuing threats of litigation by the applicant is having a serious impact on the Union's ability to manage its budget and resources. There are other calls on its resources and the Union may not be able to meet claims by the fourth respondents for their costs of an appeal. The Union also says that:
(a)the passing of time has inevitably affected the integrity of evidence as to events occurring over 20 years ago; and
(b)the deaths of Hancock in 2001 and Lewandowski in 2003 mean that evidence once available to answer the applicant's allegation has been lost.
In his affidavit the second respondent says that his general health is poor. He suffers from cancer and is on daily medication. The legal proceedings commenced by the applicant since 1990 have had a considerable impact on his mental health. In 2003 he retired from his position with the Police Union when he was diagnosed as suffering from post‑traumatic stress disorder. He can no longer work and is in receipt of a Veteran Affairs pension. He says he was extremely upset when he learned of this application, he having believed that the 2007 orders brought an end to 20 years of litigation. The stress has exacerbated his condition.
All of the fourth respondents point to prejudice that will flow from the death of Lewandowski and Hancock and from the fact that they have little independent recollection of events occurring during the investigations into the Perth Mint swindle and the Mickelberg trials. They all say they were relieved when the orders were made dismissing the 2007 Action and believed that this brought the litigation to an end. They were upset when they learned of this application. They all say they are dependent on the Police Union for legal assistance to defend the proceedings brought by the applicant.
While age is a relative thing, none of the fourth respondents can be described as young. Henley is 57. Hooft is 59 and suffers from clinical depression. Henning is 73 years of age and retired from the Police Service in 1990 and is now on the aged pension. In 2008 he began to suffer from epileptic seizures. Round is 67 and retired from the Police Service in 1996. He suffers from osteoarthritis. He has also had a number of operative procedures to remove growths from his vocal chords. His ability to speak has been badly affected and he is undergoing speech therapy. Tovey is 56 and (in April 2008) was still a serving member of the Police Service.
There is no getting away from the fact that the effect on the applicant of a refusal of an extension of time will be serious. As a result of the consent orders made in December 2007 it will be very difficult for the applicant to seek redress against these respondents. That has to be balanced against the prejudice pointed to by the respondents and against

the general history of litigation between the parties. The public interest in finality of litigation also comes into play.

I have come to the view, on balance, that notwithstanding the serious consequences for the applicant, the issue of prejudice falls in favour of the respondents.

The application to adduce additional evidence

The application to adduce additional evidence relates to the 2003 affidavit and affidavits sworn by the applicant on 1 July 1986, 24 July 1992 and 12 August 2007 in other actions. I have described the content of the 2003 affidavit earlier in these reasons. The 12 August 2007 affidavit annexes the 2003 affidavit. The 1 July 1986 affidavit and the 24 July 1992 affidavit are directed to the merits (or lack thereof) of the defamation proceedings instituted by Lewandowski and Billings against the applicant and to the loss he says was occasioned by the impugned conduct.
In my view the additional evidence does not bear on the limitation point and thus does not advance the applicant's argument about the merits of the appeal against the orders made on 4 May 2004. I should add in passing that nor, in my view, do they add materially to the applicant's explanation for the delay or to the arguments concerning the issue of prejudice. I would decline the application for leave to adduce additional evidence.

Conclusion

Given the length of the delay, the fact that the explanation for the delay is inadequate, the difficulties the applicant would have in establishing a successful case in the substantive appeal, the prejudice to the respondents if the appeal were to proceed and the public interest in finality of litigation, I would refuse an extension of time.
PULLIN JA: The appellant seeks an extension of time in which to appeal and if an extension is granted, the court is to determine the appeal itself. The appellant has also made an application for an order admitting additional evidence at the hearing of the appeal. The history leading to the orders appealed against are set out in Owen JA's reasons.
I will deal first with the application to admit additional evidence to determine whether or not that additional evidence would in any way fortify the merits of the grounds of appeal. If so, that would be relevant to the application for an extension of time in which to appeal.

The principles governing an application to admit additional evidence are set out in Goninan v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182, and in particular at [10] and [11] which read:
[T]here is no reason for thinking that the common law rules which governed the admission of fresh evidence apply to confine the discretion conferred by r 47: CDJ v VAJ at [52] for Gaudron J, [107] and [108] per McHugh, Gummow and Callinan JJ, and at [186] per Kirby J.
However, although an appeal to the Court of Appeal is by way of rehearing (see r 25) it is highly unlikely that the jurisdiction conferred by r 47(3)(d) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdictions. The availability of additional evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the additional evidence exists to serve the demands of justice. Ordinarily where it is alleged that the admission of additional evidence requires a new trial, justice will not be served unless the Court of Appeal or a Judge is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial Judge and put that person to the expense, inconvenience and worry of a new trial: CDJ v VAJ at [111] per McHugh, Gummow and Callinan JJ.
The reference to a 'trial' above should be read in this case to refer to the application before the master.
The proposed additional evidence is in documentary form and is contained in a supplementary application book. One category of additional documents relates to the merits of the appellant's claim for damages. Some of the documents in this category are relevant to whether the alleged misrepresentation inducing him to sign the deed of settlement entered into in September 1996 was false. The others in this category are those which the appellant contends are relevant to whether he suffered damage. This category of documents does not bear at all on the issue about whether the limitation defence should succeed or not. Another category relates to the appellant's complaint about the conduct of the litigation by his former solicitors. These are not relevant to any issue and they are certainly not relevant to the limitation defence.
For those reasons, I would dismiss the application to adduce the additional evidence.
It is then necessary to turn to the limitation point. The precise unfolding of events bearing upon this issue are set out in Owen JA's reasons. The various causes of action (other than the cause of action for damages for deceit) which were set out in the statement of claim or in the minute, were all unquestionably statute barred because they were all causes of action in tort in relation to which damage was said to be sustained in the 1980s or early 1990s. The appellant claims however, that a new cause of action arose in September 1996 when he signed the deed of settlement. The essence of the appellant's claim is that he was induced to sign the deed of settlement and to accept $275,000 instead of his much larger claim for damages for millions of dollars in reliance on a misrepresentation of fact. The appellant alleges that the misrepresentation was made by Lewandowski. By various means, the appellant attributes responsibility for this misrepresentation to other respondents. Although some of these allegations appear to be unsustainable, for the purpose of this appeal only, I will assume that these allegations are true.. The cause of action is the common law action of deceit and the only relevant remedy sought is for common law damages. No equitable relief is sought. For example the appellant does not seek and does not want the equitable remedy of rescission because that would require him to return the $275,000. The appellant wants to keep the $275,000 and to claim damages being the difference between that sum and the damage he says he sustained. In relation to this common law cause of action, the limitation period began to run in September 1996 when the deed of settlement was signed. Six years later in September 2002 it was statute barred. The appellant's writ did not issue until August 2003
On those facts, the limitation defence was therefore bound to succeed. Although the High Court said in Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 that a limitation defence should not ordinarily be determined before trial in an interlocutory application, it said that this was so except in the 'clearest of cases'. This is a clear case. The master did not err in reaching the conclusion that the limitation defence was bound to succeed.
The appellant relies on Hawkins v Clayton (1988) 164 CLR 539. In that case the plaintiff did not know that he had a right to bring an action because the tortfeasor concealed the existence of the facts giving rise to the cause of action. In this case the appellant knew that he had a cause of action. All that happened when Lewandowski made his confession was that he had additional evidence to support the cause of action he claimed to have. Hawkins v Clayton does not therefore avail the appellant.
The application for the extension of time was made after gross delay on the part of the appellant. There is no satisfactory explanation for long stretches of time which have elapsed since the time for appealing expired and during which the appellant did nothing to motivate an appeal. Details of the relevant events bearing on the application are set out in Owen JA's reasons and it is unnecessary to repeat them. I agree with Owen JA for the reasons he gives that there is prejudice to the respondents. Those factors, and the lack of merit in relation to the appeal mean that the application for an extension of time should be dismissed.