O'Callaghan v Hall & Anor

[1993] QCA 297

IN THE COURT OF APPEAL	[1993] QCA 297
SUPREME COURT OF QUEENSLAND

Appeal No. 133 of 1993

Brisbane

[O'Callaghan v. Hall]

BETWEEN

DENIS O'CALLAGHAN

Appellant/Defendant

AND:

KEVIN HALL and SUSAN HALL

Respondents/Plaintiffs

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The President
Pincus J.A.

Moynihan J.

_______________________________________________________________

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Judgment delivered 16 August 1993
Judgment of the Court

Application for an extension of time within which to appeal refused, with costs.

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CATCHWORDS:	APPEALS - application for extension of time - 18 months delay between judgment below and application - whether delay unreasonable and unjust.
Counsel:	Mr A P J Collins for the applicant. Mr G J Robinson for the respondents.
Solicitors:	Messrs Astills for the applicant. Messrs Cranston McEachern & Co. for the respondents.
Hearing Date:	9 August 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 133 of 1993

Brisbane

Before:  The President
Pincus J.A.
Moynihan J.

[O'Callaghan v. Hall]

BETWEEN:

DENIS O'CALLAGHAN

Appellant/Defendant

AND:

KEVIN HALL and SUSAN HALL

Respondents/Plaintiffs

JUDGMENT OF THE COURT

Judgment delivered 16/08/1993

This is an application for an extension of time in which to file a notice of appeal. The judgment from which it is sought to appeal was given against the applicant in the District Court on 13 December 1991 and a notice of motion seeking an extension of time was filed on 28 July 1993; if an extension is granted, then, the notice of appeal will be over 18 months out of time. The case had to do with defective brick work.

The application is supported by a number of affidavits, but in view of the points argued it is unnecessary to explain their content in detail. Counsel for the applicant, who was the defendant in the District Court, argued that there was injustice caused to the applicant for two reasons: first, the applicant was deprived of a right to trial by jury, and secondly, he had not an adequate opportunity to arrange for an inspection of the work the subject of the proceedings, before the trial.

The reasons for judgment given by her Honour Judge McMurdo in the District Court were, in brief summary, as follows.

The defendant (now the applicant) was engaged to do the bricklaying for construction of a house at Shailer Park in 1988; the price agreed was $360 per 1,000 bricks. About 12 to 18 months after the work was complete the plaintiffs noticed that the mortar was very soft; they took some professional advice and contacted the defendant, who offered to do a certain amount of remedial work. That offer was not accepted by the plaintiffs. The defendant wished to have an engineer take mortar samples and the plaintiffs agreed to that on certain conditions, but it emerged that the testing would involve removing about 100 bricks from various areas around the dwelling; the plaintiffs would not agree to that. A Mr R B Gray, an industrial chemist with experience in analysing concrete, tested the mortar according to the Australian standard. When Mr Gray took samples he noticed the mortar was extremely soft and testing revealed that the proportion of cement in the mixture was very much too low. Mr W J Moore, a civil engineer, also provided a report to the effect that the proportion of cement in the mortar was too low.

He was of opinion that the chimney should have been monolithically bonded to the exterior wall and this had not occurred. Mr Moore made other substantial criticisms of the brick work, which in his opinion required demolition and rebuilding. A Mr J J Swatton, a qualified bricklayer and registered builder, described the brick work as "appalling". He made substantial criticisms of its quality and, like Mr Moore, recommended that it be taken down and done again. Mr G F Mills gave a quote for dismantling and replacing the brick work with work of a proper standard: $28,960. Mr M J Lee, another builder, quoted $32,700. Mr G C Martin, a civil engineer, said that the brick work did not comply with the engineering design for the house (which Mr Martin prepared). His opinion was that the structural deficiency in the north wall was such that it would not be stable under a full wind load. Again, he was highly critical of the low proportion of cement used and recommended demolition and rebuilding of all external brick work. The defendant gave evidence in which he said he had no explanation for the results of the mortar tests. His evidence included the following:

"I don't know, but I don't blame anyone else for the problem. It is 100% mine. I have offered to rectify it. I have offered to pay for the demolition."

The defendant conceded that the bricklaying job was
unsatisfactory.

It was not suggested that the judge's account of the evidence was in error. On those facts, a finding in favour of the defendant would have been perverse. There was no dispute that the challenged brickwork was unsatisfactory. Her Honour accepted the evidence that demolition and reconstruction were necessary and gave judgment for $28,960 with costs.

No reasonable explanation for the failure to appeal in time has been given. The affidavits disclose that bankruptcy proceedings have been taken and we were informed that certain negotiations took place, presumably with reference to those proceedings. However, there is no suggestion that the successful party, the plaintiffs below, ever agreed to an extension of time, expressly or implicitly. The applicant's reaction to loss of this case was to contact his local member of State Parliament. He does not say, and it is difficult to believe, that he thought the matter was one for resolution by political representations. He admits he "visited a lawyer" within a week of the judgment, but does not say what then transpired.

The process of litigation is not only expensive but time- consuming. It is desirable that, as far as practicable, the Courts discourage undue and unnecessary delay. The notion that the rules setting time limits should be treated as of no importance is one which if accepted would be destructive of the proper administration of justice. The present is a plain case of undue and unnecessary delay on the part of the defendant.

Only in the most extraordinary circumstances, and to avoid a plain injustice, could this Court consider granting an extension of time to appeal after such a long and unjustifiable delay as has occurred here.

It is necessary to deal with the two points which were argued. One was that the applicant (defendant below) was wrongly deprived of the opportunity to have the case tried by jury. According to one of the applicant's affidavits, prior to the trial he lodged "an application for a trial by jury".

The rules do not contemplate that (see r. 234) and we understood from counsel for the applicant that the mode of obtaining a jury which the rules contemplate - namely, inserting a requirement in the defence - was not followed. The affidavit of the applicant filed in this Court says that after discussions with the judge he consented to the matter being heard without a jury because he did not want to pay the costs of an adjournment. In our opinion it is hardly likely that there would have been a need for adjournment; the rule enabling a jury to be summoned had not been followed. The case was not one in which it would have been appropriate for a judge to direct trial by jury, under r. 234(c).

The second point taken on behalf of the applicant was, as we understood it, that he did not have a proper opportunity to have the brick work inspected in the fashion he desired. There seems to us to be nothing in this complaint. If there was any difficulty about inspection, it was up to the applicant to apply to the Court in due time to have the matter resolved.

Apart from that, the evidence was overwhelming that the brick work was unsatisfactory and it is hard to believe that any further testing than had been done was necessary.

We referred above to bankruptcy proceedings; we have noted that an application was made to set aside a bankruptcy notice based upon the District Court's judgment. The Federal Court rejected the attempt to "go behind" the judgment, finding against the applicant. The Court's reasons include a full

discussion of the second point taken before us - the alleged
difficulty about testing. The Court came to the opinion that:

"There are no substantial reasons for questioning whether there is a debt in truth and reality owing to the judgment creditors."

Apart from the applicant's assertions, there is nothing of substance to support the contention that the trial was unfair or the judgment questionable. The learned primary judge has, it appears, dealt fully and carefully with the evidence and reached, on the face of the matter, proper conclusions.

In our opinion, to allow the application for an extension of time to appeal would be to do an injustice to the plaintiffs. The application will be refused with costs.