M E T v S K a E - [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

This is an application to file a Notice of Alternative Contention out of time.
By rule 214.5(1) of the Uniform Civil Rules 2020 (SA), where a respondent wishes to contend that the decision under appeal should be upheld for reasons other than those given by the court, a Notice of Alternative Contention must be filed 14 days after service of the Notice of Appeal.
The notice in this case was not filed by the respondent in accordance with the Rules of Court, but it is confined to two propositions of law. Those propositions were the subject of written and oral submissions by the parties and rejected, or at least not upheld, by the primary judge.[1]
[1] MT v SE [2023] SADC 129, [65]-[73] (whether the Intervention Order proceedings terminated in favour of the appellant); [99]-[108] (whether special loss was sustained by the appellant).
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).
The second point concerns whether the Intervention Order proceedings terminated in favour of the appellant. Again, it appears to be common ground that this is an element of malicious prosecution.[6]
[6] Beckett v State of New South Wales (2013) 248 CLR 432, [4], [6], [62].
The respondent takes issue with the treatment the primary judge gave to these two points.
The submissions of the parties
The respondent submits that these two points concern matters of law. It is submitted that they will be addressed on the basis of the evidence that was before the primary judge. Although it was not put this way in argument, I have the impression that the respondent intends to address these questions of law on the basis of the inferences which should be drawn from evidence and findings about which there is no dispute.[7]
[7] Warren v Coombes (1979) 142 CLR 531, 551-552.
Whilst the appellant suggested that the facts upon which these two arguments depended were contentious, with one exception he did not suggest that those contentions were other than about the proper inferences to be drawn from the evidence before the primary judge.
The exception concerned the appellant’s statement that he had only recently discovered that he was registered as a teacher in the Northern Territory some years ago. The appellant said that he only learned that when making enquiries with the South Australian authorities earlier this year.
The appellant was not able to explain to me why that fact was not made the subject of evidence before the primary judge, other than to say that he was not aware of it. I do not think that this statement, made for the first time from the bar table, should affect my consideration of the application.
The evidence offered by the respondent explaining the failure to file and serve a Notice of Alternative Contention within time is scant indeed. The appellant criticised this evidence, submitting that it revealed a lack of diligence and candour.
Determination of the application
In the course of determining an appeal by way of rehearing under s 50 of the Supreme Court Act 1935 (SA) and r 218.17 of the Uniform Civil Rules 2020 (SA), this Court is empowered to determine an appeal on its merits, despite the failure by any party to raise or state properly a ground of appeal or alternative contention.[8]
[8] Rule 217.10(2) of the Uniform Civil Rules 2020 (SA).
Notwithstanding the specification of the times by which the parties are expected to take any procedural steps in the course of appellate proceedings, the Court retains the power to make orders modifying those times.[9] The discretion conferred on the Court is not confined by rigid rules and it must always ensure that it does justice between the parties.[10]
[9] Rule 215.1(2)(f) of the Uniform Civil Rules 2020 (SA).
[10] Gallo v Dawson (1990) 64 ALJR 458, 459 (McHugh J), affirmed in Gallo v Dawson (1992) 66 ALJR 859. See also Jackamarra (an infant) v Krakouer (1998) 195 CLR 516, [66.1] (Kirby J); Thompkins v South Australian Health Commission [2001] SASC 147, [12] (Martin J).
The starting position is that the parties are expected to adhere to the times specified by the Rules of Court, and any orders made by this Court. It is for the party seeking the indulgence to meet the burden of persuading the Court to grant an extension of time.[11]
[11] AonRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [4]-[5] (French CJ), where “the lack of a satisfactory explanation” was emphasised.
Where it is demonstrated that compliance with the rules or any orders of this Court may cause injustice, and an extension of time is required, the Court will usually consider the length of any delay, any reasons given for it, and any prejudice likely to be sustained depending upon whether an extension is granted or refused, together with whether the party in default has an arguable case.[12]
[12] Gallo v Dawson (1990) 64 ALJR 458, 459 (McHugh J), affirmed in Gallo v Dawson (1992) 66 ALJR 859.
In this matter the two points raised by the respondent appear to be at least arguable. It was not suggested otherwise.[13] Whilst the delay is lengthy and poorly explained, I am not prepared to infer that it had anything to do with the respondent, as distinct from her legal advisers.[14] Though the absence of evidence of a candid explanation about that is troubling, it is not here a sufficient reason to refuse the application.[15]
[13] Jackamarra (an infant) v Krakouer (1998) 195 CLR 516, [14] (Brennan CJ and McHugh J).
[14] It is recognised that delays by a party’s lawyers are not usually treated in the same way as delays by the party, see Jackamarra (an infant) v Krakouer (1998) 195 CLR 516, [66.7] (Kirby J).
[15] Where an extension of time is sought, the applicant should provide a frank and candid explanation for the delay, Pond v Workcover [1999] SASC 362, [56] (Lander J, with whom Millhouse and Williams JJ agreed).
Most importantly, I do not think that granting an extension of time will cause the appellant any significant prejudice. I accept that he will be annoyed about having to deal with these two matters. He will, at least to some extent, be inconvenienced. I do not overlook that he cannot be compensated in costs.[16]
[16] Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, [1]-[3] (Kiefel CJ, Bell, Keane and Gordon JJ).
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.