Penola and District Ratepayers and Residents Association Inc v Wattle Range Council

[2011] SASC 77

Supreme Court of South Australia

(Civil: Application)

PENOLA AND DISTRICT RATEPAYERS AND RESIDENTS ASSOCIATION INC & ANOR v WATTLE RANGE COUNCIL & ANOR

[2011] SASC 77

Judgment of The Honourable Chief Justice Doyle (ex tempore)

3 May 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT

The applicant and appellant filed a Notice of Appeal on 24 August 2010 - the appeal was not set down for hearing within six months after the appeal was commenced causing it to lapse by operation of Supreme Court Civil Rules 2006 (SA) r 296(2) - the applicant and appellant made application to reinstate the appeal to the Full Court - an affidavit of the file solicitor disclosed that the appeal books were not brought to the Registry to be filed until 27 January 2011 - a member of Registry staff informed the person who brought the appeal books to be filed that they could not be accepted as they had not been lodged within two months of the commencement of the appeal in accordance with Supreme Court Civil Rules 2006 (SA) Practice Direction 6.8 - whether, in the circumstances of the case, it was in the interests of justice to reinstate the appeal.

Held: Application allowed. It was in the interests of justice to reinstate the appeal.  

Supreme Court Civil Rules 2006 r 296(2) Practice Direction 6.8, referred to.

PENOLA AND DISTRICT RATEPAYERS AND RESIDENTS ASSOCIATION INC & ANOR v WATTLE RANGE COUNCIL & ANOR
[2011] SASC 77

Civil:  Application

1. DOYLE CJ (ex tempore):     This is an application to reinstate an appeal to the Full Court which has lapsed by operation of r 296(2).  It has lapsed because the appeal was not set down for hearing within six months after the appeal was commenced.

2. The Notice of Appeal was filed on 24 August 2010.  The six month period expired on 23 February 2010.

3. The proceedings in this Court challenged a Council’s resolution or resolutions made in April and May 2007.  The resolutions relate to the acquisition of land for the purpose of construction of a roadway.  I accept that this is a matter in which substantial amounts of money are involved on the part of the Council, and that the proceedings are delaying what is a substantial road works proposal.  The Council is naturally concerned about the delay.

4. The affidavit filed by Mr Mellor, the solicitor for the applicant and appellant, discloses that he was slow in preparing the appeal books, after the appeal was instituted.  The appeal books have to be lodged at court before the appeal can be set down.

5. The affidavit of Mr Mellor suggests that there was little or no activity in relation to the appeal books until January, despite reminders from the solicitors for the respondent.  During January an index was agreed, and the appeal books were certified as correct by 27 January 2011.

6. Mr Mellor has filed an affidavit stating that the appeal books were sent to court on about 27 January 2011.  An email from a member of the Registry staff to Mr Mellor on that day suggests that is correct. 

7. I understand that when the appeal books were brought to court a member of the Registry staff informed the person who brought them that they could not be accepted because they had not been lodged within two months of the institution of the appeal.  That is the effect of Practice Direction 6.8.

8. After the appeal books were rejected, Mr Mellor was again slow in responding.  It appears that he did not make prompt contact with the Registry to clarify the situation, nor did he make the necessary application for an extension of time.  23 February came and went and the appeal lapsed.

9. An application for an order giving leave to set the appeal down for hearing was filed on 7 April 2011.  That was not the appropriate application to make.  The appropriate application, an application for an order reinstating the appeal, was filed on 14 April 2011. 

10. That application is now opposed.  The solicitors for the Council, not surprisingly, rely on the delay by Mr Mellor and on the importance of time to the respondent.  There is an understandable concern on the part of the respondent that delays in advancing the road construction will mean that government funding may cease to be available.  There is also an understandable concern about cost increases.

11. The situation now before the Court is attributable to Mr Mellor taking too long to prepare the appeal books and then the subsequent failure by Mr Mellor to sort out what the problem was.  It should have been apparent that urgent action was called for.

12. Mr Mellor deposes to pressing personal circumstances that distracted him from his practice at the time.  I accept what he says, but in one way or another this is a matter that should have been attended to. 

13. It should have been apparent that this was an appeal that needed to be disposed of promptly.

14. When I turn to weigh up all of the relevant circumstances and what is in the interests of justice, I have come to the conclusion that it is appropriate to make the order sought.  I have been influenced by the following circumstances in particular.  These circumstances cut one way or the other.

15. The first is that the overall delay in this matter, that is the period from the Council resolutions to now, is a cause for real concern because this is obviously a substantial project for the Council and to a lesser extent for the State.

16. The second factor is that there is no suggestion that the appellants themselves have been to blame in any way for what has happened, although one wonders why there is no evidence of them pressing their solicitor to get the appeal moving.

17. The third factor is that it has not been argued that the appeal is not reasonably arguable.

18. The fourth factor is that the problem is attributable to the fault of the appellant’s solicitors.

19. The fifth factor is that the appeal was instituted within time, the problem was a failure to set the appeal down, something that is viewed less seriously than a failure to institute an appeal.

20. The next factor is that the appeal books were presented at court before the six months had expired, but they were presented without getting an extension of time for the filing of them and so they could not be accepted. The order that would have permitted them to be accepted was not obtained before the six months expired.

21. I do accept that there is a risk of prejudice to the Council through the possible loss of state funding, but it is a risk the level of which cannot be quantified.  I accept what Mr Roder says, that with the passage of time one would think the risk of the loss of funding will tend to increase. However, it is impossible to quantify the degree of risk, or at least on the material before me.

22. I also accept that the Council is likely to incur additional costs with the passage of time and so, in that sense, prejudice is made out.  However, again on the material before me it is not really possible to quantify to what extent that is due to the failure to set the appeal down as distinct from the overall passage of time since the resolutions in question.

23. Another factor which is relevant is that the respondent could have applied to strike out the appeal any time after 24 October 2010. This is relevant to the prejudice to which I have just referred. In saying this I am not critical of the Council for failing to make that application. On the other hand, if its level of concern was high enough it could have done so as a fall back or fail safe.

24. I am also influenced by the fact that the question of prejudice will remain relevant on appeal. In other words, even if the appeal succeeds on questions of law, it remains a question whether having regard to prejudice that has occurred, it would be appropriate for the Court then to make the orders sought.

25. In my opinion it would at least be arguable that the Court should look at the situation as it is at the time of allowing the appeal if it does so.

26. All of these factors have to be considered. I have had two opportunities to think about them.  In all the circumstances I am persuaded that it is appropriate in the interests of justice to make the orders sought. Accordingly I make the following orders:

    1. I order that the appeal be reinstated.

    2. I extend the time for the filing of the appeal books and the setting down of the appeal to Friday 6 May 2011.

    3. I direct that subject to the appeal being set down for hearing, the appeal be listed for hearing before the Full Court on Monday 6 June 2011.

    4. I order that the defendant be paid its costs of this application and order, such costs to be paid by the solicitors for the plaintiff and on the basis that the costs incurred by the solicitors for the plaintiff themselves will not be charged to the plaintiffs.