Nolks v Dickman T/as Ray Laurence Constructions

[2010] NTCA 7

Nolks v Dickman T/as Ray Laurence Constructions [2010] NTCA 7

PARTIES:  NOLKS, Thorsten

v

DICKMAN, Charles trading as RAY LAURENCE CONSTRUCTIONS

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 8 of 2010

DELIVERED:  9 November 2010

HEARING DATES:  9 November 2010

JUDGMENT OF:  RILEY CJ

APPEALED FROM:  Southwood J

REPRESENTATION:

Counsel:

Appellant:Self represented but nil appearance

Respondent:  K Sibley

Solicitors:

Appellant:Self represented but nil appearance

Respondent:  Minter Ellison

Judgment category classification:    C

Judgment ID Number:  Ril1027

Number of pages:  5

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Nolks v Dickman T/as Ray Laurence Constructions [2010] NTCA 7

No. AP 8 of 2010

BETWEEN:

THORSTEN NOLKS

Applicant

AND:

CHARLES DICKMAN trading as RAY LAURENCE CONSTRUCTIONS

Respondent

CORAM:     RILEY CJ

REASONS FOR JUDGMENT

(Delivered ex tempore 9 November 2010)

Introduction

1. These proceedings arise out of a building dispute relating to the construction of a house undertaken by the respondent on behalf of the applicant.  The matter was the subject of a hearing before Southwood J between 7 and 11 December 2009.  His Honour delivered judgment on 16 July 2010.  Judgment was delivered in favour of the respondent.

2. By operation of r 85.12(1)(a) of the Supreme Court Rules an appeal in such proceedings is to be filed within 28 days after the date of judgment.  The appeal period expired on 13 August 2010.  On 16 August 2010, the applicant, Mr Nolks, lodged a document by way of notice of appeal.  On 24 August 2010, the respondent informed the applicant that his notice of appeal was out of time and that it was necessary for him to make an application for an extension of time.  The information was provided to the applicant in writing.

3. On 20 September 2010, in the course of a mention of the matter in the Supreme Court, the respondent again advised the applicant of the need for an application for an extension of time and informed the applicant that in the absence of such an application an order would be sought dismissing the appeal as incompetent.

4. This matter comes before me today as a single judge of the Court of Appeal pursuant to s 52(2)(b) of the Supreme Court Act.  It is apparent that the applicant has not sought leave of the Court of Appeal to file the notice out of time as allowed by r 85.12(2) and he has not provided any material in support of any such application.  There is in the document filed by the applicant a pencilled in claim for an extension of time, but no further application has been made.  The applicant has done no more than simply assert that he seeks such an extension. 

5. Whether or not to extend the time is a matter within the discretion of the court.  The court must base its decision on material which the court determines would enable it to exercise its discretion in favour of the granting of an extension of time.  The authorities set out in Williams: Civil Procedure Victoria make it clear that for an extension of time to be granted, the applicant for such an order must explain the delay in the lodging of the documentation and there must be advanced reasons to justify the delay being excused. 

6. In this case, the attention of the applicant has been drawn to the requirements for an extension of time by the respondent; the applicant has been on notice for some time that this application would be made.  The applicant has taken no steps to make a formal application for an extension of time or to provide any information to the court which would support an exercise of the discretion in his favour.

7. A review of the proposed grounds of appeal does not suggest that this is an appeal with real prospects of success.  The concern of the applicant seems to be that the learned trial Judge favoured the evidence of the respondent over that of the applicant.  In his judgment, the trial judge spelled out in some detail the reasons why he preferred the evidence of the respondent.  There is nothing in the documentation provided by the applicant to suggest that his Honour erred in his approach.

8. Making due allowance for the fact that the applicant is now self-represented, although he was legally represented at the trial, it is not apparent that any sustainable ground of appeal has been identified.  In his notice of appeal, he refers to what would seem to be fresh evidence which was available to him at the trial.  Other issues raised relate to matters not placed in contention by him at the trial and he seeks to pursue a claim that was in fact abandoned during the course of the trial.

9. I am satisfied that the documents necessary for today's proceedings have been served upon the applicant.  It is apparent from communication between the applicant and the court registry that he was aware of the hearing today.  He has elected not to attend and has not communicated with the court to provide any reason for his failure to attend other than that the time did not suit his convenience.  In addition, he did not appear before the registrar to settle the index of the appeal book at the time required and he provided no explanation for his failure.  Other than to attend the court on one occasion for a meeting with the registrar, he has not taken any steps, of which I am aware, to pursue his appeal.

10. The notice of appeal was lodged out of time.  There has been no application to extend time and no explanation for the failure to lodge the appeal within time.  The notice of appeal as drawn does not reveal grounds which suggest real prospects for a successful challenge to the decision of the learned trial Judge. 

11. Rule 84.16 (1) provides that a respondent may apply at any time for an order dismissing an appeal as incompetent.  Rule 84.16 (2) provides that, at the hearing of the application, the burden of establishing the competency of the appeal is on the applicant.  Rule 84.16(3) provides that if the appeal is dismissed as incompetent other than by application by the respondent then the respondent is to have no costs of the appeal.

12. In the present case, the application has been made pursuant to r 84(16).  In my opinion, in all the circumstances, it is appropriate to dismiss the appeal as incompetent and I make that order.  The appeal will be dismissed.

--------------------------------------------