M E T v S K a E

Case [2024] SASCA 109

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

M E T v S K A E

[2024] SASCA 109

Decision of the Honourable President Livesey  (ex tempore)

4 September 2024

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS

The respondent has applied to file a Notice of Alternative Contention out of time.

The appellant commenced proceedings against his former wife, claiming damages for malicious prosecution and collateral abuse of process.  The proceedings related to an Interim Intervention Order which subsisted for nine months. The appellant claimed that, as a result, he was denied registration, and thereby employment, as a teacher. He also claimed aggravated and exemplary damages.  The appellant is not legally represented.

A District Court judge granted the respondent summary judgment and awarded her the costs of the proceedings on a party-party basis.  The appellant has sought leave to appeal these orders. The hearing before the Court of Appeal is next week.

The Notice of Alternative Contention is confined to two propositions of law which were the subject of written and oral submissions by the parties at the hearing.  These propositions were, at the least, not upheld by the primary judge. Whilst the respondent’s delay was lengthy and not adequately explained, it appeared to be the fault of the respondent’s legal advisers.

HELD granting the application for an extension of time to file and rely on the proposed Notice of the Alternative Contention:

1.      The two points raised by the Notice of Alternative Contention are at least arguable and were comprehensively addressed by the parties before the primary judge.

2.      The absence of evidence of a candid explanation for the delay, whilst troubling, is not here a sufficient reason to refuse the application.

3.      Though the appellant will be inconvenienced if the respondent is permitted to rely on the proposed Notice of Alternative Contention, it does not appear that the granting of an extension of time will cause the appellant undue prejudice.

4.      There will be no order as to costs.

Supreme Court Act 1935 (SA) S 50; Uniform Civil Rules 2020 (SA) R 214.5, 215.1, 217.1, 218.17, referred to.
Beckett v State of New South Wales (2013) 248 CLR 432; Bell Lawyers Pty Ltd (2019) 269 CLR 333; Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; Gallo v Dawson (1990) 64 ALJR 458; Gallo v Dawson (1992) 66 ALJR 859; Hanrahan v Ainsworth (1985) 1 NSWLR 370; Jackamarra (an infant) v Krakouer (1998) 195 CLR 516; MT v SE [2023] SADC 129; Thompkins v South Australian Health Commission [2001] SASC 147; Warren v Coombes (1979) 142 CLR 531, considered.

M E T v S K A E

[2024] SASCA 109

Court of Appeal – Civil:  Livesey P

Introduction

  1. This is an application to file a Notice of Alternative Contention out of time.

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M E T v S K a E [2024] SASCA 109
Case
[2024] SASCA 109
Decision Date

CaseChat Overview and Summary

The appellant, M E T, commenced proceedings against the respondent, S K a E, his former wife, alleging loss and damage arising from an Interim Intervention Order issued against him. The appellant claimed he was denied registration and employment as a teacher due to this order, and sought aggravated and exemplary damages. His claims were framed in tort, specifically malicious prosecution and collateral abuse of process, requiring an allegation that the respondent intended to cause him harm. The respondent applied for summary judgment or a strike-out of the proceedings, arguing there was no reasonable basis for the appellant's claims. The primary judge granted summary judgment in favour of the respondent, ordering her costs. The appellant subsequently filed a notice of appeal, which was substantially amended. The respondent then sought an extension of time to file a Notice of Alternative Contention, raising two points not comprehensively addressed by the primary judge in her favour.

The legal issues before the court concerned whether to grant the respondent an extension of time to file and rely on her Notice of Alternative Contention. This involved considering the potential prejudice to the appellant and the respondent's ability to address the two points raised in her submissions. The respondent's proposed alternative contention focused on whether the appellant suffered "special damage," which appears to be a necessary element for the tort of collateral abuse of process.

The court, per Livesey Ex Tempore P, granted the extension of time sought by the respondent. The reasoning was that the two points raised in the Notice of Alternative Contention had been comprehensively addressed before the primary judge, both in writing and orally. The court was not convinced that the appellant would be unable to address these points, and therefore, the appellant would not be unduly prejudiced by the extension. The court exercised its discretion to extend the time for the respondent to file and serve the Notice of Alternative Contention.

The court ordered that the respondent be granted an extension of time until 12 noon on the following day to file and serve the Notice of Alternative Contention. The appellant was granted leave to file supplementary written submissions by 10 am on the following Monday if he wished to supplement his existing submissions regarding the two points raised. There was no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I am prepared to grant the extension of time sought by the respondent.Background to the application The appellant made a claim for damages against the respondent, his former wife, in which he alleged that he sustained loss and damage as the result of an Interim Intervention Order issued against him on 25 March 2015. The Interim Intervention Order was sought by the Police and made in the absence of the appellant and without the respondent having to give evidence. It was revoked just over nine months later, at around the time parenting orders were made in the Federal Circuit Court pursuant to the Family Law Act 1975 (Cth).[2][2] MT v SE [2023] SADC 129, [11]-[13]. The appellant pleaded that he was denied registration, and thereby employment, as a teacher as the result of the Intervention Order. He also claimed aggravated and exemplary damages. The appellant’s claims were brought in tort by way of malicious prosecution and collateral abuse of process. Essential to each was the allegation that the respondent intended to cause the appellant harm.[3][3] MT v SE [2023] SADC 129, [1]-[2]. The respondent applied for summary judgment or, alternatively, strike-out on the ground that there was no reasonable basis for the appellant to prosecute his claims.[4] After the matter was argued during September and October 2022, on 28 September 2023 the primary judge gave summary judgment in favour of the respondent and awarded her the costs of the proceedings on a party‑party basis.[4] MT v SE [2023] SADC 129, [20]. The appellant’s first notice of appeal dated 31 October 2023 was served on the respondent on 14 November 2023, but at callovers in the Court of Appeal the appellant made it clear that he intended to amend. The Amended Notice of Appeal dated 3 May 2024 represents a very substantially amendment of what was initially filed and now represents the basis upon which this appeal will be heard. Even if time is calculated from the date of the Amended Notice of Appeal it is clear that the proposed Notice of Alternative Contention is substantially out of time. The respondent’s evidence demonstrates that it was only following the receipt of the appellant’s written submissions on the appeal on Friday, 23 August 2024 that senior and junior counsel for the respondent recognised that the two submissions the subject of the proposed Notice of Alternative Contention had not been addressed by the primary judge in a manner favourable to the respondent. The application for an extension of time which is before me was filed at around the same time as the respondent’s written submissions on the appeal dated 30 August 2024 were filed. These written submissions have addressed the two points on which the respondent now wishes to rely. The first point concerns whether the appellant suffered “special damage”. It appears to be common ground that the tort of collateral abuse of process requires that the appellant prove that he has suffered special damage as the result of the misuse of legal process.[5][5] Hanrahan v Ainsworth (1985) 1 NSWLR 370; Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734, [41]-[42] (Bell P).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Nonetheless, the two points raised by the Notice of Alternative Contention were comprehensively addressed before the primary judge, both in writing and orally. I am far from convinced that the appellant will be unable to address these two points early next week.Conclusion In these circumstances, the appellant will not be unduly prejudiced if the respondent is given an extension of time to file and rely on the Notice of the Alternative Contention. Despite shortcomings in the evidence offered by the respondent, in the exercise of my discretion, I will extend until 12 noon tomorrow the time for the respondent to file and serve the Notice of the Alternative Contention exhibited to the affidavit of Ms Vesna Vuksan affirmed on 28 August 2024. The appellant has leave to file a supplementary written submission by 10 am on Monday 9 September 2024 should he wish to supplement the written submissions he put before the primary judge regarding the two points raised by the Notice of the Alternative Contention.[17][17] As for “special damage”, see the appellant’s written trial submissions at paragraphs [22]-[30] at appeal book pages 46-47; and as for whether the proceedings terminated favourably, see paragraphs [41]-[45] at appeal book pages 49 to 50. There will be no order as to costs.

Ratio Decidendi

Legal Principle Established

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