Pace v Read

[2000] NSWSC 823

Reported Decision: (2000) 179 ALR 437

New South Wales

Supreme Court

CITATION:	Pace v Read [2000] NSWSC 823 revised - 21/11/2000
FILE NUMBER(S):	SC 10625/2000
HEARING DATE(S):	17/4/2000;20/4/2000;9/5/2000;10/5/2000;29/5/2000;1/6/2000.
JUDGMENT DATE:	18 August 2000
PARTIES :	Lena Theresa Pace v Robert Victor Read
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	G Johnson

COUNSEL :	Mr R. Harper - For Plaintiff Ms P Koroknay - For Defendant
SOLICITORS:	Solicitors for Plaintiff: Mills Cameron Gallagher Suite 302, 3 Carlingford Road EPPING N S W 2121 Telephone: [phone] Solicitors for Defendant: Vaughan Barnes Unit 37, 7 Anella Avenue Castle Hill N S W 2154 Telephone: [phone]
CATCHWORDS:	Appeal from Local Court under Local Court's (Civil Claims) Act 1970 - Appeal limited to error in point of law - Relationship between Local Court's (Civil Claims) Act) 1970 and Part V of Justices Act 1902 - Section 69 of Local Court's (Civil Claims) Act 1907 not repealed by Justices Legislation Amendment (Appeals) Act 1998 - Extension of time for appealing - Factors relevant to grant or refusal of leave
LEGISLATION CITED:	Justices Act 1902 Fair Trading Act 1987 (NSW) The Trade Practices Act 1975 (C'wealth) Contracts Review Act 1980 (NSW) Local Courts (Civil Claims) Act 1970 (NSW) Justices Legislation Amendment (Appeals) Act 1998 Supreme Court Rules
CASES CITED:	Jones v Dunkell (1959) 101 CLR 298 Carr v Nevill (Supreme Court, unreported, 17 December 1999: (1999) NSWSC 1263) Jakamarra v Krakouer (1998) 153 ALR 276 Jakamarra v Krakouer (supra at 294, per Kirby J) Palata Investments Ltd v Burt and Sinfield Ltd (1985) 1 WLR 942 at 946-947 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Brown v Dean (1910) AC 373 Wenkart v Abignano (Federal Court, 3 September, unreported (1998) 1035 FCA Gallo v Dawson (1990) 64 ALJR 458 Gallo v Dawson (supra) Jess v Scott (1986) 12 FCR 187 Nelson Tobacco Company v The Commissioner for ACT Revenue (No.2) (1992) 109 FLR 323 Brown v Dean (supra) Jakamarra v Krakouer (supra at 283)
DECISION:	Plaintiff's Amended Summons dismissed with Costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION O’KEEFE J DATE: 18 AUGUST 2000 No. 10625 of 2000 - LENA THERESA PACE v ROBERT VICTOR READ

JUDGMENT

1 HIS HONOUR: 2 INTRODUCTION 3 By summons dated 20 March 2000 the plaintiff, Lena Theresa Pace (Mrs Pace), sought an extension of time for the instituting of an appeal under Pt 51B r 6(2) of the Supreme Court Rules in respect of a judgment entered against her on 15 March 1999 in the Local Court at Parramatta for $25,602.05 together with costs and interest and orders that the claim against her be dismissed and that judgment entered in her favour on a cross claim for $9,536 she had instituted in the Local Court in the proceedings in which she had been unsuccessful. By an amended summons dated 2 May 2000 she sought, in addition to the orders referred to above, orders that time for seeking leave to appeal pursuant to Pt 51B r 5(7) of the rules be extended and a further order that leave be granted to appeal against the decision of the magistrate in the Local Court on the ground that decision involved errors of mixed fact and law as provided for s 104 (1) of the Justices Act 1902.

4   BACKGROUND

5   The background to the claim by Mrs Pace is that in February 1997 she signed four mortgage loan application forms seeking advances totalling $9.65 million dollars. One which was for a loan in respect of a proposed development at Walker Street, Quakers Hill was amended so as to seek a loan of $2.658 million dollars. That application was proceeded with by her.

6   The applications were made through a broker Robert V Read and Associates (Mr Read). It was a term of the loan application that the defendant , Mr Read , would arrange a loan and that in consideration of the broker so doing Mrs Pace agreed to pay a brokerage fee calculated at one percent of the loan requested or the amount of the loan which the lender agreed to make.

7   Mr Read succeeded in arranging finance for Mrs Pace with Mortgage Linked Securities Pty Ltd (MLC) and as a consequence on 1 May 1997 MLC made a conditional offer of a loan to Mrs Pace for $2.658 million dollars. The conditions of the loan offer were unremarkable and included, inter alia, provisions for the giving of security (Cond 6) and a guarantee (Cond 7), providing for interest (Cond 8) and giving the right to the lender to withdraw in the event that was a detrimental change in the status or financial condition of the borrower occurred or there was a relevant non-disclosure or if the lender was not satisfied with any documents, material or information provided by the borrower or guarantor (Cond 11). The offer provided for a mode of acceptance by way completion and delivery of a Certificate of Acceptance and payment of certain fees (Cond 14). The offer also required provision of certain documents and material “as soon as possible” (Cond 15). The documents and information required included certain company accounts and “if the Borrower or Guarantor is an individual … tax returns for the last two years” (Cond 12(d)).

8   Mrs Pace signed the document headed "Certificate of Acceptance" and made the required payments by which she accepted the offer which had been made to her. At the same time she signed a document headed “Payment of Brokerage” which read as follows:

"The undersigned hereby acknowledges and confirms that in consideration of Robert V Read and Associates arranging a mortgage advance for $2,658,000 offering the security of the above property at my request a brokerage fee of $26,580 is payable by me to Robert V Read and Associates
And it is hereby agreed and declared that $8290 of the said brokerage shall be paid upon acceptance of me of the Indicative Letter of Offer
And the undersigned also irrevocably directs the Lender and the Lender's Solicitor to deduct the sum of $13,290 from the advance contemporaneously with the advancing being made and further I irrevocably direct the Lender and the Lender's Solicitor is to pay the sum of $13,290 to Robert V Read and Associates immediately thereafter".

9   At the time the offer was made by MLC to Mrs Read she was in dispute with her accountant and as a consequence did not comply with the condition concerning the provision of her tax returns to MLC. After some negotiations , in which she attempted unsuccessfully to renegotiate the clause requiring production of such tax returns, Mrs Pace did not take up the loan.

10   In these circumstances Mr Read claimed to be entitled to the payment of the brokerage calculated at one percent of the amount of the loan namely $26,580 dollars, against which was set-off an amount of the $5,000 which had been received by Mr Read to the credit of Mrs Pace. As a consequence Mr Read’s claim was for an amount of $21,580 together with interest . He sued for this in the Local Court .

11 To this claim Mrs Pace raised a number of defences under the Fair Trading Act 1987 (NSW), The Trade Practices Act 1975 ( C’wealth ), The Contracts Review Act 1980 (NSW)and the general law on the basis that the agreement between the parties was "unfair and unconscionable by reason of (Mrs Pace's )position of special disadvantage. Mrs Pace also cross-claimed seeking damages of $9536, consisting of the fees she had paid to MLC and $5,000 she had paid as brokerage.

12   After a hearing on the merits Mrs Pace was unsuccessful in her defence and cross claim. Judgment was entered against her for the amount claimed together with interest and her cross claim was dismissed. This occurred in a reserved decision which was handed down on 15 March 1999. 13   FACTS 14   At the time judgment was delivered in the Local Court Mrs Pace’s then solicitor, Mr Khoury , was not present. As emerged during the course of the hearing of the present matter Mrs Pace owed Mr Khoury a considerable sum of money in respect of various matters. He estimated that this exceeded $100,000 in total, of which some $10,000 was claimed by him in respect of the action in the Local Court in addition to $2,000 outstanding in respect of counsel’s fees. 15   In cross examination she conceded that Mr Khoury’s account for acting for her was still outstanding and that after the judgment was delivered she did not speak to Mr Khoury again. 16   In her affidavit of 20 April 2000 Mrs Pace stated that she “was not advised in March 1999 or at any time thereafter by Mr Khoury of my right of appeal”. In the light of the evidence given at the hearing of the present matter, including that referred in the preceding paragraph, her statement is disingenuous. It should also be noted that the statement is limited to Mr Khoury. Furthermore , for reasons to which I will advert later, Mrs Pace was not a witness in whom I am able to repose confidence, indeed I found her to be evasive, selective and unsatisfactory both in the evidence she gave and the manner in which she gave it. 17   Nothing appears to have been done about the judgment by Mrs Pace until September 1999 when she instructed Mr Cameron of Mills Cameron Gallagher to act in connection with an application by Mr Read for an assessment of the costs payable in respect of the proceedings which had concluded on 15 March 1999. It is probable that these instructions were given on or about 15 September 1999, some six months after the date on which judgment had been given against her. 18   Between 15 March 1999 and 15 September 1999 Mr Read’s solicitors had caused a bill of costs to be prepared and had sought an indication as to whether or not the bill would be contested. In the event, after a deal of delay on Mrs Pace’s side of the process, the costs were fixed at $9,538.66 and a certificate for this amount was issued on 24 December 1999. However, nothing was done in relation to the judgment that had been entered against Mrs Pace nor was any indication given either in writing or orally that there would be any challenge to it. Indeed, the actions of Mrs Pace and her solicitors in relation to the taxation of costs proceeded on the basis that there would be no appeal or like proceedings instituted in respect of the judgment. 19   On 29 February 2000 Mrs Pace was served with a bankruptcy notice that had been issued by Mr Read based upon the judgment that he had obtained against Mrs Pace almost 12 months previously. Mrs Pace said that “on or about 4 February I instructed my solicitor Mr Niles of Mills Cameron Gallagher to advise me in relation to the judgment in the proceedings in the local court” and that “on 7 March 2000 I was advised by Mr Miles in relation to the prospects of succeeding in the appeal in relation to the proceedings.” (italics added) 20 The clear implication arising from the affidavit in which the above statements occurred was that no advice had been given in relation to the judgment entered in the Local Court prior to 7 March 2000. However, the affidavit is, in my opinion carefully worded. It does not say, for instance, that Mrs Pace had not considered or asked about the possibility of appeal when she sought advice in September 1999 or thereafter. Furthermore, neither Mr Niles nor Mr Cameron gave any evidence in support of Mrs Pace’s claim in this regard and no explanation was given as to why this was so. The principle in Jones v Dunkell (1959) 101 CLR 298 can in these circumstances properly be applied. As a consequence it can be inferred that evidence on this topic from Mr Niles or Mr Cameron would not be of assistance to Mrs Pace. Indeed, in an affidavit sworn by Mr Niles the only references he makes to the proceedings in the Local Court are that Mrs Pace instructed him “to advise her generally in relation to those proceedings” on 3 February 2000 and that he advised her “in relation to the Bankruptcy proceedings and the Proceedings in the Local Court” on 7 March 2000. Whether he or his firm had previously advised her in relation to the existence of a possible right of appeal as opposed to her prospects of succeeding in any such appeal against the decision in the Local Court, is not dealt with in his affidavit. 21   Mrs Pace was an experienced business woman and developer. She was a director of a number of companies. Together with her husband she had been involved in the running of a concrete company for many years and took over the running of that company when she and her husband separated. In addition she presented as an intelligent woman, keenly aware of what might be advantageous or disadvantageous to her case in the course of giving her evidence. Furthermore, as she conceded in her evidence, she had expected to win the proceedings in the Local Court, was annoyed when this did not occur and, as is clear from the tenor of the evidence, was not anxious to pay the amount awarded against her. In these circumstances the last answers given in the following evidence, in my opinion, lack credibility, particularly when viewed against the background of a number of evasions and misstatements, to some of which I will advert later:

“Q. Mrs Pace, had you expected to win the case?
A. Yes.
Q. Was it a disappointment to you when you did not?
A. Yes.
Q. Were you annoyed?
A. Yes.
Q. Did you seek any other advice other than from Mr Khoury in relation to your rights?
A. No, once the judgment was handed down as final there was nothing, what was said in the court that - that is what the judge said to me. That was his words.
Q. You didn’t enquire from anybody about the right to appeal?
A. No.
Q. Thank you. Until after you had received the bankruptcy notice?
A. No, no.”

22 Two matters should be adverted to in respect of the foregoing evidence. First, it does not sit well with her evidence that she instructed her solicitor Mr Niles to instruct her in relation to the judgment on 4 February 2000 nor with the evidence of Mr Niles that she instructed him to advise her generally in relation to the proceedings before the Local Court on 3 February 2000. Second, the transcript of what occurred before the Magistrate when he delivered judgment was not tendered. There is no corroboration of Mrs Pace’s assertion that the Magistrate said that his judgment was final. It would be curious if he did so but did not advert to the right of appeal which is provided for in s 69 (3) of the Local Courts (Civil Claims) Act 1970 (NSW). 23 I do not accept her evidence. Furthermore, even if it were to be accepted, it indicates that she had allowed a period of 11 months to go by before seeking to do anything about the judgment, notwithstanding that there had been protracted dealings through the same solicitors in relation to one of the sequelae of the judgment, namely costs. Thus either way there is a very substantial delay on the part of Mrs Pace and it has not been satisfactorily explained. 24 As I have said Mrs Pace was an unsatisfactory witness. When cross examined about sales of property in the three months prior to her cross examination she said at first, unequivocally, that there had been no sales. When pressed on this it emerged that she had in fact exchanged contracts on a number of properties in that period. Her rationalisation of her unequivocal answer was “(t)hat doesn’t mean that it is sold” When cross examined about other proceedings instituted against her in the three months preceding her cross examination, she countered a clear question with a question namely “(i)n which way do you mean?”. When asked did she not understand the question, her answer made it clear that she did and then her answer to the question was “(n)ot as far as I know.” When asked to clarify this she again answered with an unequivocal “No.” It then emerged that there were proceedings that had been instituted against her but she sought to explain her answer by discounting such proceedings on the basis that they were “(n)othing that is relevant.” 25 Her demeanour when dealing with the examples adverted to in the preceding paragraph and some other matters was, in my opinion, unsatisfactory. On occasions she paused for some considerable time before answering. She appeared to want to give an answer that was favourable to her case. Her manner, when the correct situation was exposed, was sheepish. I thought she displayed an astuteness which was combined with a lack of candour. I did not find her evidence convincing and as I have already indicated I do not accept it in a number of respects. 26 APPLICABLE LAW

A Procedural

27 Section 69 of the Local Courts (Civil Claims) Act 1970 (NSW) provides:

“(1) Subject to subsection (2), all judgments and orders of a court exercising jurisdiction under this Act shall be final and conclusive.
(2) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom.
(2A) (Not applicable)
(3) The provisions of section 101 to section 115, both sections inclusive, of the Justices Act 1902, apply, to the extent to which they are applicable, to appeals under subsection (2) in the same way as they apply to appeals to the Supreme Court under those provisions.”

28 In December 1998 assent was given to the Justices Legislation Amendment (Appeals) Act 1998. That Act amended Part 5 of the Justices Act 1902 by omitting the existing Part 5 and substituting a new Part 5. The new Part 5 is headed “Appeals to Supreme Court” and Division 2 (sections 104-115) is headed in the same way. Section 102 provides for the application of Pt 5 and expands the ordinary meaning of “a sentence” so as to include a wide range of orders. However, an examination of s 102 (1)(b) establishes that the order referred to in that subsection is in the nature of or in lieu of a conviction or a punishment imposed by the court. Furthermore, from the list of specifics set out in s 102 (2), it is clear that the orders referred to in that subsection are criminal or quasi criminal in nature. 29 Part 5 is also made to apply to other appeals which are not criminal or quasi criminal in nature. This is effected by s 102 (3) which provides as follows:

“This Part, to the extent to which it is not inconsistent with any other Act, applies to any order of a Magistrate made under another Act against which:
(a) an appeal is provided for under the other Act to the Supreme Court, or
(b) an appeal is provided for under the other Act but no court is specified for the appeal.”

30   The important reservation made in s 102 (3) is to be found in the words “to the extent to which it is not inconsistent with any other Act”. 31   Section 104 deals with appeals by a defendant or informant. It provides:

“(1) Appeals by defendants
A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on the following grounds:
(a) a ground that involves a question of law alone,
(b) a ground that involves a question of mixed law and fact but only with the leave of the Supreme Court,
(c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence.
(2) Appeals by informants
An informant may appeal under this Division to the Supreme Court against an order dismissing an information complaint or order for costs made, or sentence imposed, by a Magistrate in summary proceedings on a ground that involves a question of law alone.”

32 Section 106 specifies how an appeal under Pt 5 may be made and conducted namely “in accordance with the rules” (s 106(1)). Rules means rules of the Supreme Court (s 101). 33 The purpose of the Justices Legislation Amendment (Appeals) Act 1998 was to reform the appellate process by substituting in relation to appeals to the Supreme Court, an appeal by way of summons as is provided for in the Supreme Court Rules, rather than by stated case or like procedure as had been provided for in the repealed provisions of the Justices Act 1902 Furthermore, the powers of the Supreme Court specified in ss 109, 110 and 111 are apt to cover appeals to which s 102 (1) and (2) apply as well as those to which s 102 (3) applies. 34 An examination of the form of Pt 5 and in particular s 102 (3) and s 104, in my opinion, makes it clear that the grounds of appeal specified in s 104 (1) and (2) have no application to proceedings before a Local Court under the Local Courts (Civil Claims) Act 1970. In such proceedings there is no informant; there is a plaintiff. The plaintiff does not lay an information or make a complaint; the plaintiff files a claim. The proceedings before the Magistrate who constitutes the Local Court under that Act are not “summary proceedings” within the meaning of that term as used in s 104 (1) and 104 (2) of the Justices Act 1902. 35 As far as defendants are concerned s 104 (1) deals with convictions, orders and sentences of the kind referred to in s 102 (1) and (2). As already indicated these are criminal or quasi criminal in nature. They are not such as to comprehend a judgment in a civil matter in which damages are claimed or a debt is sought to be recovered. 36 The wording of s 104 is thus inapt for an appeal in relation to a decision made by a Magistrate under the Local Courts (Civil Claims) Act 1970. 37 In addition to the above considerations I do not think that either the form or purpose of Pt 5 of the Justices Legislation Amendment (Appeals) Act 1998 indicates a legislative intention to repeal s 69 of the Local Courts (Civil Claims) Act 1970. If s 104 were to be construed as applying to civil claims under that Act there would be an inconsistency between the grounds of appeal open to an unsuccessful defendant under the two Acts. However, Part 5 as introduced by the Justices Legislation Amendment (Appeals) Act 1998 applies to and regulates appeals from the Local Court exercising civil jurisdiction under the Local Courts (Civil Claims) Act 1970 only “to the extent to which it is not inconsistent with” that Act. Furthermore, s 69 (3) of the Local Courts (Civil Claims ) Act 1970 makes the provisions of Pt 5 of the Justices Act 1902 applicable only “to the extent to which they are applicable to appeals under subsection (2)”. 38 Section 69 (2) provides for an appeal against a judgment or order made by a court exercising jurisdiction under the Act on the ground that it is “erroneous in point of law”. This is the sole exception to the finality and conclusiveness of such judgments and orders that is mandated by s 69 (1). It is not probable that the legislature would have intended that an amendment to the Justices Act 1902 to change the form of appeal to the Supreme Court would allow appeals on mixed questions of law and fact so that the Supreme Court would, in effect, be called upon to retry the facts in cases that involved claims that were so small as to commit them to the Local Court for determination. 39 These considerations confirm that s 104 was not intended to and does not apply to or regulate the appeal lodged by Mrs Pace in this matter. The ground of appeal open to her in respect of the judgment in question is that it must be “erroneous in point of law” as required by s 69 (2) of the Local Courts (Civil Claims) Act 1970. 40 The decision of Sully J in Carr v Nevill (Supreme Court, unreported, 17 December 1999: (1999) NSWSC 1263) is to a like effect. I respectfully agree with his conclusion in relation to the grounds of appeal open to a party dissatisfied with a judgment of a court exercising jurisdiction under the Local Courts ( Civil Claims )Act 1970 . 41 In any event the provisions of s 104 (1) (b) require leave of the Supreme Court where the ground of the appeal from the Magistrate involves a question of mixed law and fact. The decision to grant or refuse such leave involves the exercise of a discretion in respect of which it is relevant to consider whether there is any question of principle involved in the matter. The smallness and nature of the claim are also relevant considerations. Granting leave to permit questions of fact which are mixed with questions of law to be agitated in the Supreme Court could result in the court’s time being taken up in dealing with small matters, perhaps of no legal significance, thereby delaying matters within the jurisdiction of the court as of right. The fact of delay is also a relevant consideration. In this regard the remarks of Gummow and Hayne JJ in Jakamarra v Krakouer (1998) 153 ALR 276 are apt:

“Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious … delay in a case will almost always add to the costs … delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as has happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with the prescribed time limits. Each day’s delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants.” (at 283)

42 In the light of these considerations even if, contrary to the conclusion to which I have come, s 104 (1) (b) of the Justices Act 1902 were applicable to the instant case, I would not, in the exercise of the discretion conferred by that section, grant the necessary leave to appeal. 43 The claims in the amended summons that seek relief on bases beyond that provided for in s 69 (3) of the Local Courts (Civil Claims) Act 1970 must therefore fail. 44 B. Substantive 45 Part 51B of the Supreme Court Rules deals with appeals to the court under Pt 5 of the Justices Act 1902. Rule 6 (1) fixes the time within which “an appeal must be instituted” as 28 days after the material date, namely, the date on which the decision appealed against was pronounced or given (r 3). The time for making application for leave to appeal is also fixed as 28 days after the material date (r 5 (3)). Both time limits are subject to the power of the court to grant an extension. In relation to leave to appeal this power is conferred by r 5 (5):

“The Court may, at any time, extend the time fixed by sub rule (3) …”

46   In relation to appeals the power is conferred by r 6 (2) (a):

“Time fixed by subrule (1) may be extended:
(a) by the Court at any time.”

47   Time limits for appeal are fixed for good reasons. Some of those reasons are adverted to in the passage from the judgment of Gummow and Hayne JJ in Jakamarra v Krakouer (supra) to which I have already referred. The purpose of those time limits has been described as follows:

“They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than 90 years ago as the ‘sporting theory of justice.’ They are prescribed as aids to the attainment of justice” (at 284)

48   Prima facie a party is required to adhere to the time limits prescribed by the rules. However, where there is a power to extend such time and there is good reason in the interests of justice to do so, the time limits may be extended. It is for the party seeking the extension to persuade the court that it should be granted. Such persuasion will usually depend upon the provision of an acceptable or satisfactory explanation as to how the default occurred. (Jakamarra v Krakouer (supra at 294 per Kirby J) 49   The basis on which an appeal may be allowed out of time against a judgment entered after a hearing on the merits, depends upon the exercise of a discretion. It is not an unfettered discretion. It must be exercised judicially and by reference to appropriate considerations or criteria. Whilst it has been said that there are “no rigid rules” which confine the exercise of such discretion and that its exercise must in each case depend upon the particular circumstances of the case (Jakamarra v Krakouer at 294 per Kirby J) a number of considerations or criteria have commonly been taken into account and are generally regarded as important, indeed usually treated as the main factors to be considered. They are:

1. The length of the delay in seeking to appeal.
2. The reasons for the delay.

3. Whether there is an arguable case on the appeal or, as it is sometimes expressed, whether to allow the case to go to appeal would be futile.

4. The degree of prejudice to the successful party in the proceeding should the time for appeal be extended.

50 These factors were accepted in Palata Investments Ltd v Burt and Sinfield Ltd (1985) 1 WLR 942 at 946-947 per Ackner LJ with whom Goff and Browne Wilkinson LJJ agreed. This decision was adopted in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and was referred to with approval by Brennan CJ and McHugh J in Jakamarra v Karkouer (1998) 153 ALR 276 at 279. 51 In Jakamarra Brennan CJ and McHugh J said:

“Cases such as Palata are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that where the applicant’s right to appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.” (at 279)

52 The reference to “the substantive rights of the respondent” echoes what was said by Lord Loreburn LC in Brown v Dean (1910) AC 373:

“When a litigant has obtained a judgment in a court of justice … he is by law entitled not to be deprived of that judgment without very solid grounds.” (at 374)

53   In so stating the Lord Chancellor adverted to the value of the principle expressed in the maxim “interest rei publicae ut sit finis litium”. (See also Gallo v Dawson infra). 54 To a like effect is Wenkart v Abignano (Federal Court, 3 September, unreported, (1998) 1035 FCA) in which Hill J held that “the rights conferred by (a judgment) are … properly to be regarded as property”. 55 In Gallo v Dawson (1990) 64 ALJR 458 McHugh J considered an application for an extension of time in which to file a notice of appeal in a matter in which there would have been an appeal as of right had the notice of appeal been filed within time. In refusing an extension of time of five months McHugh J stressed that:

1. The grant of an extension of time is not automatic.

2. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.

3. The discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work.

4. In order to determine whether there will be an injustice it is necessary to have regard to “the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for the extension of time.” And, where the application is for an extension of time in which to lodge an appeal, “the prospects of the applicant succeeding on the appeal” (at 459).

56   He also stressed that it was “necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’…” ( at 459 ). 57   In Gallo v Dawson (supra) the applicant sought to explain the delay in seeking an extension of time by claiming that the decision to appeal depended upon the careful assessment of the possibilities of the claim that needed reference research which involved a lot of work and time for a non professional. McHugh J said that:

“A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.” (at 459)

58 In my opinion there is no material difference between delaying the lodging of an appeal for a long time so as to carry out research in order to determine whether an appeal may succeed, and delaying the lodging of an appeal for a long time until some extraneous circumstance causes a litigant to want to appeal and as a consequence then to seek advice in relation to appealing. 59 In Jess v Scott (1986) 12 FCR 187 the Federal Court (Lockhart, Sheppard and Burchett JJ ) in refusing an application for leave to appeal out of time said:

“It would require something very persuasive indeed to justify a grant of leave after, for example, a year, equally it may be said, something much less significant might justify leave where a party is a few days late.” (at 159)

60 Counsel for Mrs Pace referred to and relied upon Nelson Tobacco Company v The Commissioner for ACT Revenue (No. 2) (1992) 109 FLR 323 in which Miles CJ granted an extension of time to appeal from a decision of a Master after a delay of six months. However, that case was concerned with an interlocutory judgment the effect of which was to terminate the plaintiff’s claim. There had been no hearing on the merits and although there was considerable delay it was held that:

“The effect of the considerable delay … does not appear to me to be of any particular importance to either party.” (at 326)

61   There is a distinction between a case in which there has been a hearing and determination on the merits and one in which there has not that. That distinction may impact upon or affect the weight to be given to various of the considerations or criteria relevant to the exercise of the discretion. Miles CJ adverted to this when he said :

“The importance of the various factors … vary according to the circumstances.” (at 325).

62   This statement suggests, as in my opinion is the case, that where the delay is very lengthy and is either unexplained, or not explained adequately or satisfactorily, it may be a significant, perhaps dominant, consideration in the exercise of the relevant discretion in a given case. Such an approach recognises and gives effect to the maxim referred to by Lord Loreburn LC in Brown v Dean (supra), recognises the proprietary right a successful party has in his or her judgment once the appeal time has expired (Jakamarra, (supra); Wenkart (supra)), gives effect to what was said in Gallo (supra) and accords with accepted notions of justice. 63   ANALYSIS 64   The delay of 12 months on Mrs Pace’s part in seeking to appeal against the judgment of 15 March 1999 was, on any view, extreme. It is a fair inference that she was only spurred on to seek to set the judgment aside because she had been threatened with bankruptcy proceedings - a threat which crystallised by service of a bankruptcy notice on 29 February 1999, approximately one week before she receive advice in relation to her prospects of succeeding on any such appeal. Furthermore, the present proceedings have resulted in the bankruptcy proceedings against her being postponed to a date beyond that on which she anticipated completion of the sales referred to earlier. 65   I am not satisfied that an adequate or satisfactory explanation has been given by Mrs Pace for her delay. In the affidavit filed in support of her application she sought to blame Mr Khoury for not advising her. Cross examination revealed that attempted explanation disingenuous. She gave no explanation in her affidavit as to why, not withstanding that she had terminated Mr Khoury’s retainer, she did not seek advice from her new solicitors when she first approached them, if that be the case. In this regard I am not satisfied that she failed to seek such advice in relation to an appeal from her new solicitors prior to February 2000. In the course of her evidence she relied on a different reason namely that the Magistrate had told her that his decision was final. I have already indicated that I do not accept her evidence in that regard. In this context it should be noted that there is not suggestion of this in her affidavit and it emerged only in the course of questions asked in the course of cross examination. 66   Counsel for Mrs Pace argued strongly that the Magistrate made a number of errors in construing both the Application for Loan and the document headed Payment of Brokerage. His primary argument was that the phrase “to arrange a loan” meant “to actually effect the agreement of the lender to loan (sic) the money to the borrower.” This entailed the transaction having to reach the point at which the lender was contractually bound to lend the money and that a contingent offer, even when accepted, did not fall within this rubric. He also argued that there was no evidence to support the implicit finding of the Magistrate that the loan had been confirmed. However, as the evidence before the Magistrate was not tendered it was not possible to make any evaluation in relation to this argument. Another argument advanced by him was that the Magistrate erred in applying the test necessary for the implication of contractual terms. 67   In an application for an extension of the time in which to appeal it is inappropriate to make a final determination in relation to the correctness of arguments raised in order to satisfy the third of the considerations or criteria referred to in paragraph 49 above. In the present case it is sufficient to say that the challenges made to the Magistrate’s determination of the construction of the agreement between Mrs Pace and Mr Read for Mrs Pace to pay brokerage could not be described as futile. They were arguable, indeed, they could perhaps be described as strongly arguable. 68   In the time that elapsed after the judgment was given against her she did nothing to obtain a stay, she participated in the finalisation and certification of costs and took no steps to satisfy the judgment. Mr Read, on the other hand, has been deprived of the fruits of his victory and has incurred costs in entering the judgment, in finalising the costs and in taking steps to enforce his judgment. A judgment is not only an accrued right but should also be regarded as finalising the lis inter partes. A judgment gives certainty to the situation between the litigating parties. Certainty is itself part of the concept of justice; uncertainty a source of worry and upset, which is unjust. (see for example Jakamarra v Krakouer supra at 283 per Gummow and Hayne JJ) It would, in the circumstances of this case, in my opinion, be unjust to deprive Mr Read of his judgment on the application of Mrs Pace, which has been so long delayed without acceptable or satisfactory explanation. 69   For the foregoing reasons, the relief sought by Mrs Pace should be refused. 70   ORDER 71   The plaintiff’s Amended Summons is dismissed with costs.

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Last Modified: 11/24/2000