Philip Damian Burke v James Garsden and Adam Bodzioch No. SCGRG 89/243 Judgment No. 3865 Number of Pages 8 Courts Practice and Procedure

[1993] SASC 3865

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Courts - preactice and procedure - appeal - Failure to set down appeal for hearing in time - Application to extend time within which to set appeal down for hearing - Application made 3 1/2 years after institution of appeal - Relevant principles - Application refused
Supreme Court Rules 1987, Rules 95, 96 and 98. Ratnam v Cumarasamy (1965) 1 WLR 8; Hughes v National Trustees Executors and Agency Co of Australasia Ltd
(1978) VR 257; Gal1o v Dawson (1990) 93 ALR 479; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Jess v Scott (1986) 12 FCR 187; Ulowski v Miller (1968) SASR 277 and Davy v Spelthorne B.C. (1984) 1 AC 262, applied. Corfu Clothing Co Pty Ltd v Commissioner of Stamps (1988) 48 SASR 105, not followed.

HRNG ADELAIDE, 10 March 1993 #DATE 12:3:1993
Appellant in person
Counsel for respondents:        Mr Parker
Solicitors for respondents:     Crown Solicitor

ORDER
Application to extend the time within which to set this appeal down for hearing refused.

JUDGE1 DEBELLE J This is an application to extend the time for setting down an appeal for hearing. The appeal is from orders made by a Master refusing an application for judicial review. 2. On 7 February, 1989, the applicant filed an application for judicial review, in which he claimed the following relief:
    1. A declaration as to the standards appropriate to the
    exercise of the Registry's discretion under Rule 84.10 and Rule
    84.15; and
    2. Damages incurred by the applicant from the misfeasance in
    public office (or breach of statutory duty or negligence) of the
    defendants and including exemplary or aggravated damages as
    specified in an affidavit in support of the application. 3. On 3 April 1989, the applicant applied for leave to serve the summons pursuant to Rule 98.04A. The Master refused leave and struck out the application in its entirety. He held there was no reasonable prospect that the court would make an order in the nature of judicial review. So far as the claim for damages was concerned, the Master held there was no reasonable cause of action disclosed. The Master delivered some ex tempore reasons. They were in the following terms:
    "I have read all the documentation on file said to support an
    order. Garbled as it is I am unable to find any ground upon
    which judicial review is an appropriate remedy. I decline to
    make the order. There is clearly no reasonable prospect that
    the Court would make an order in the nature of judicial review.
    I have listened to all that Mr. Burke has put to me. He feels
    aggrieved. He thinks he should have been given more assistance
    in the drawing of orders and treated more courteously than he
    alleges. Whatever the truth of this be there is really nothing
    capable of review. Indeed I suspect, given the garbled nature
    of the documentation herein, that the defendants would have been
    under considerable strain in ascertaining what in fact was
    appropriate in dealing with Mr. Burke's procedural difficulties.
    But again I am not in a position to finally determine the truth
    of the matter. Nor do I think it appropriate or indeed
    necessary to pursue those matters. The fact is 'judicial
    review' should not be used to ponder such matters. There is
    also a claim for damages. Again this revolves around what
    Mr. Burke sees as being 'messed around' by the defendants.
    Whilst I have given close regard to the submissions of Mr. Burke
    as to misfeasance I cannot find in the documentation before me
    any reasonable cause of action. The plaintiff and the
    defendants have, again on the documentation, 'fallen out' - I
    suspect again because of the confused 'state of play' at the
    time - but nowhere do I find any possible grounding of a cause
    of action against those defendants." The Master had jurisdiction to make such orders: see Rules 98.04A(4) and 98.05(3). 4. On 12 April 1989, the applicant lodged a notice of appeal against the decision of the Master. However, the applicant did not apply to set his appeal down for hearing until December 1992. He should have done so within 28 days of instituting the appeal: Rule 97.06. He now applies for an extension of time within which to do so. 5. The applicant appeared in person. Mr Parker sought leave to appear for the respondents. Although the respondents had not been served, they were aware of this application. I, therefore, granted leave. 6. Appeals from Masters are regulated by Rule 97 of the Supreme Court Rules. This is not an appeal against a final judgment within the meaning of Rule 97.02. It was open to the applicant to make a subsequent application for leave to serve the application for judicial review, although such an application might well have been pointless unless the applicant adduced new material: Hall v Nominal Defendant (1966) 117 CLR 423, 429 and 440-441; Hewitt v Mirror Newspapers Limited (1977) 17 ACTR 1; Carr v Finance Corporation of Australia Limited (No.1) (1981) 147 CLR 246, 248. It was, therefore, necessary for the applicant to appeal to a single judge pursuant to Rule 97.03. The appeal should have been instituted within seven days. It was instituted within nine days. The time within which the appeal could have been instituted could have been extended by leave. The respondents take no point as to the time within which the appeal was instituted. The applicant referred to Rule 98.10(2) but that applies only to the extent that it enables me, if I think it proper to do so, to direct this appeal be heard by the Full Court. There is no reason why I should make such a direction. 7. Rule 97.06 provides for the time within which an appeal should be set down for hearing. The appeal should be set down within 28 days after the institution of the appeal: Rule 97.06(1). If the applicant does not apply to set it down, the respondent may either apply for leave to set the appeal down or apply for an order dismissing the appeal for want of prosecution: Rule 97.06(2). The respondents did not make either application. The applicant now applies for an order extending the time within which to set down the appeal. The fact that the applicant has failed to set the appeal down for hearing within 28 days does not mean that the appeal is incompetent. The applicant must apply for an extension of time within which to set the appeal down for hearing: Moody v Moody (1949) SASR 331; Orchard v Orchard (1972) 3 SASR 89. 8. Notwithstanding that Rule 97.07 provides that the relevant rules of Rule 95 shall with all necessary modifications apply to all appeals under Rule 97, I do not think that Rule 95.11 has any application. Rule 95.11(3)(a) provides: "Where an appeal has not been set down within twelve months from its institution, or from when the appellant first became entitled to set it down, whichever is the latter, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired." Rule 97.06 provides a procedure for setting down appeals from Masters. Rule 95.11 provides a procedure for setting down appeals from a single judge to the Full Court. Each provision is in different terms and each provides its own regime for the setting down of appeals. Had it been intended that an appeal from a Master should be automatically dismissed where an applicant does not set it down within 12 months from the institution of the appeal or from the time when the applicant first became entitled to set it down, a provision to that effect could have been made in Rule 97.06. Alternatively, had it been intended that the same regime should apply in respect of appeals from Masters as applies to appeals from single judges, then Rule 96.07 could have been expressed in terms which provided simply that the procedure for setting down appeals from the decisions of Masters should be as provided in Rule 95.11. In short, Rule 95.11 and Rule 97.06 not only provide a regime for setting down the kind of appeal to which each relates but each regime is separate from the other. Rule 95.11(3), therefore, has no application to the setting down of appeals from Masters. I reach this conclusion notwithstanding the decision in Corfu Clothing Co Pty Ltd v Commissioner of Stamps (1988) 48 SASR 105. The conclusion in that case was reached without any analysis of the terms of the relevant Rules and in my respectful view it is wrong. 9. I turn to the question whether an order should be made to extend the time within which to set down this appeal. The principles to be applied when determining such an application are, broadly speaking, the same as those governing applications to extend time within which to institute an appeal. To some degree also, the factors to be considered when determining the application to strike out an action for want of prosecution are relevant. What is common to all three is that a party has been guilty of delay in taking a step in an action. 10. The principles to be applied when considering an application to extend the time within which to set an appeal down for hearing might be summarised in this way:
    1. The grant of an extension of time is not automatic. The
    Rule which formerly enabled applications to be made to extend
    the time for doing any act or taking any proceeding was O.67r.4
    of the Supreme Court Rules 1947. It empowered the Court to
    extend the time "upon such terms (if any) as the justice of the
    case may require". The expression "upon such terms (if any) as
    the justice of the case may require" is not to be found in
    either Rule 3.04(d) or Rule 6.02 of the Supreme Court Rules
    1987. Nevertheless the Court must have regard to the interests
    of justice. If the law were otherwise, a party in breach would
    have an unqualified right to an extension of time. This would
    defeat the purpose of the Rules, which is to provide a
    time-table for conduct of litigation: Ratnam v Cumarasamy (1965)
1 WLR 8, 12; see also Hughes v National Trustees Executors and
Agency Co of Australasia Limited (1978) VR 257, 263. One object
    of fixing time limits under the Rules is to achieve finality of
    judicial determinations: see Hughes v National Trustees
    Executors and Agency Co Australasia Limited (supra) at 263. The
    Rules are framed in the interests of expedition and, generally
    speaking, should be obeyed: Moody v Moody (supra) at 335.
    2. The object is to ensure that the Rules which fix times for
    doing acts or taking proceedings do not become instruments of
    injustice. In other words, the discretion to extend time is
    given for the sole purpose of enabling the Court to do justice
    between the parties: Hughes v National Trustees Executors and
    Agency Co of Australasia Limited (supra) 262; Gallo v Dawson
(1990) 93 ALR 479, 480. The consequence is that the discretion
    will only be exercised in favour of an applicant upon proof that
    strict compliance with the Rules will work an injustice.
    3. In determining whether the Rules will work an injustice,
    the Court will have regard to the length of the delay, the
    reasons for the delay, whether there is an arguable case and the
    extent of any prejudice to the respondent: Palata Investments
Limited v Burt and Sinefield (1985) 1 WLR 942, 946; Esther
Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198.
    In other cases, it has been held that, when determining the
    question of injustice, the Court will have regard to the history
    of the proceedings, the conduct of the parties, the nature of
    litigation and the consequences for the parties of the grant or
    refusal of the application for extension of time: Avery v No 2
Public Service Appeal Board (1973) 2 NZLR 86, 92; Jess v Scott
(1986) 12 FCR 187, 194-195; Gallo v Dawson (supra) at 480. I do
    not think there is any material difference between the two lists
    of factors which have to be considered. The matters in each
    list overlap to a great extent.
    4. When considering the reasons for delay, regard will be had
    to whether the delay is attributable to the party or to his
    solicitors. The former will operate more severely against the
    applicant: Allen v Sir Alfred McAlpine and Sons Ltd (1968) 1 All
ER 543, 555-556, 561; Ulowski v Miller (1968) SASR 277, 282-283;
    Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) at 198.
    5. When considering the extent of any prejudice to the
    respondent, regard will be had to the vested right a respondent
    has to retain the judgment unless the application is granted:
Vilenius v Heinegar (1962) 36 ALJR 200, 201; Gallo v Dawson
    (supra) at 480.
    6. It is always necessary to consider whether the applicant has
    an arguable case, that is to say to consider the prospects of
    the applicant succeeding in the appeal: Hughes v National
    Trustees Executors and Agency Co of Australasia Limited (supra)
    at 263-4; Gallo v Dawson (supra) at 480. 11. It must be emphasised that this list is not exclusive. Other cases might call for the consideration of other factors. Those which I have mentioned are relevant to the determination of this application. 12. The discretion must not become fettered with a series of rules. Each case must, of course, be considered on its own facts and circumstances. As the Full Court of the Federal Court has emphasised in Jess v Scott (supra) at 196:
    "...a discretion to relax the requirements of genera rules
    should not itself become entangled in a web of rules spun out of
    the Court's discretionary decisions. The tendency in some of the
    decisions we have discussed to regard a particular factor
    considered previously, in the light of other circumstances, as
    requiring the same effect to be given to it in the different
    situation before a court on a later occasion is a temptation
    which a court should resist. Decisions are not authorities upon
    the facts but upon principles; the facts must be regarded as
unique to the particular case." It must be constantly borne in mind that the discretion is a wide one and that, at the end of the day, the Court will be concerned to do what the interests of justice require. 13. In this case, some three years and nine months have elapsed since the Master made the orders the subject of the appeal. Such a long delay demands explanation. The applicant seeks to explain the delay by stating that he is a litigant in person. He says that he has been engaged in three other actions in this court which have prevented him from prosecuting this appeal. The reasons advanced by the applicant are unconvincing and do not explain the inordinate delay in setting down this appeal. His involvement in the other actions is not a valid reason for failing to set the appeal down, a relatively simple step. The applicant could then have arranged for the appeal to be heard at a time which did not conflict with his obligations in the other actions. 14. In the course of his submissions, the applicant said that he did not set the appeal down because he was seeking to have it consolidated or heard together with one of the other actions. That reason too is unconvincing. By reason of orders made in the other actions, the applicant knew by September 1990 that the two actions could not be heard together. Nevertheless, he took no step to set down this appeal. Furthermore, there is no relationship between the two actions. While the matters complained of in this action occurred in the course of the prosecution of the other action, the two actions are quite unrelated. Not only are the parties different, but also the issues in each action which require separate consideration. Ordinary principles of procedural fairness would require the two actions to be heard separately. 15. The applicant advances no other reason for the delay. He does not explain why or how being engaged in these actions prevented him from setting the appeals down for hearing. It is relevant to note also that the applicant does not assert that he failed to set the appeal down for hearing because he was unaware of the fact that it was required by the Rules. Indeed, he admitted in the course of argument that he knew that he was required by the Rules to set the appeal down for hearing. He admits to some familiarity with the Rules gained by reason of him having been actively engaged in at least three actions in this Court over the past eight years. The affidavits filed in support of the application for judicial review and this application confirm this view. 16. The applicant submitted that the delay should not count against him because it was open to the respondents to apply for leave to strike out the appeal for want of prosecution. I do not think that it is necessary for the respondents to give the applicant any warning that an application will be made to strike the appeal out for want of prosecution or to make such an application: see Ulowski v Miller (1968) SASR 277, 282. 17. Where there has been a delay, not of months, but of years in setting an appeal down for hearing, special circumstances would be required in order to justify the Court in exercising a discretion in favour of extending the time within which to appeal. The applicant has failed to give any satisfactory explanation for such an extraordinarily long delay in applying to set the appeal down for hearing and there are no other circumstances which justify granting his application. There is not, in my view, any sufficient ground for allowing the application. 18. Furthermore, I think this application should also be refused on the ground that the applicant does not have an arguable case. The application for judicial review sought redress in respect of three matters. I deal with each in turn. 19. The first matter relates to an alleged disagreement with the Registrar and Deputy Registrar concerning the settling of some orders. It is not alleged that the respondents failed to settle the orders. The gist of the applicant's complaint is that the respondents were discourteous and rude towards him in the course of settling the orders. He complains also that he was asked to prepare unnecessary drafts of orders and the respondents did not assist him in that task. It is for that reason that he seeks the declaration in paragraph 1 of the application. As the summons has not been served on the respondents, they have not had any opportunity to deny the allegations made by the applicant in his affidavit in support of the application for judicial review. Although Mr Parker informed me that the allegations are denied, I will assume for the purpose of this application that all of the matters alleged by the applicant are true. The applicant's allegations do not, in my opinion, give rise to any issue which is properly the subject of an application for judicial review. The fact of the matter is that the orders have been settled. There is, therefore, nothing upon which the Court could make any order for judicial review or in the nature of a declaration. Although an order for a declaration provides a wide range of redress, it will not be ordered where there is no dispute between the parties and one party seeks the intellectual satisfaction of certain questions: Lever Brothers and Unilever Ltd v Manchester Ship Canal Co (1945) 78 Lloyd's Rep. 507 at 509-10. It is well established that the Court will not make orders in respect of hypothetical questions. The Court would not order a declaration given that the orders were settled long before the application was issued. The issues were hypothetical at the time the applicant initiated these proceedings. 20. However, the applicant contends that he is at least entitled to damages for the alleged rudeness and discourtesy on the part of the respondents. He further alleges that one of the respondents threatened him and that he is entitled to damages for assault. The assault is alleged to have occurred in the course of an argument as to the settling of the orders. The applicant alleges that one of the respondents said, "If you raise your voice to me or don't behave courteously, I'll have you ejected from this room, from this building" or words to that effect. To this the applicant replied in the following words or words to the effect, "No you won't. My voice is not raised any more than yours". Thus, taking the applicant's case on its face, the alleged assault amounts to no more than a voiced threat not accompanied by any physical act to eject the applicant from the Registry or its precincts. There is no suggestion that the threat extended beyond the use of those words. 21. In the applicant's own words, all of this constitutes an abuse of authority by the respondents or misfeasance in public office. Alternatively, he submits, that the respondent who made the threat was guilty of the tort of trespass. 22. So far as the alleged discourtesy and rudeness are concerned, neither would give rise to any claim for damages. At best, the applicant's allegations amount to no more than the respondents might have acted in a discourteous manner towards him. While their behaviour might have been reprehensible and might have been the kind of behaviour which should be redressed through administrative channels, it does not give rise to any claim for damages at the suit of the applicant. As to the alleged assault, I think that, even if it was proved, it would result in no more than an award of nominal damages at best. I therefore do not believe that the applicant has an arguable claim for damages. 23. In addition to those difficulties in establishing a claim for damages, there is another hurdle in the path of the applicant. The applicant's claim for damages is made pursuant to Rule 98.09 which empowers the Court to award damages if the plaintiff has included in his summons a claim for damages arising from any matter to which the application relates. It is to be noted that the right to award damages which is conferred by Rule 98.09 is by its terms linked to the application for judicial review. Unless judicial review will lie, damages cannot be awarded: per Lord Wilberforce in Davy v Spelthorne B.C. (1984) 1 AC 262, 277. Furthermore, an action for judicial review is not an appropriate vehicle to bring an action for a tort: Davy v Spelthorne B.C. (supra) at 273-274 and at 278. What the plaintiff in truth seeks is claim for damages at common law. Those rights are not even peripheral to any claim at public law properly the subject of an application for judicial review. 24. The next matter which the applicant sought to remedy in the application for judicial review was an alleged failure to set down for hearing an application dated 11 April 1988 in action number 2859 of 1987 in this Court. On 30 November 1988, the Chief Justice advised the applicant that he was at liberty to set the matter down for hearing. The applicant has not followed that advice. The applicant, therefore, cannot now complain of a failure to set that matter down. The applicant seeks to explain his failure to set the application down by stating that he believed it was more appropriate to institute this application for judicial review. His reasoning is quite fallacious. There can be no justification at all in his making an application for judicial review to set down an application which he has expressly been invited to set down and has not. Furthermore, in the course of argument, the applicant admitted that he does not now seek judicial review in relation to that matter. Instead, he seeks damages for what he alleges was an abuse of authority by staff in the Registry in failing to set it down. 25. The final matter for which the applicant seeks redress is the alleged failure to set down two applications dated 16 June 1988 in action number 2367 of 1985 in this Court. However, as the applicant stated in the course of argument, he has taken other steps in those actions and events have now overtaken those applications. He, therefore, does not seek judicial review in relation to the alleged failure to set down those applications. Again, all he seeks in relation to this matter is damages for what he alleges is an abuse of authority. 26. There is nothing which supports any allegation of misfeasance in public office, negligence or breach of any statutory duty. I do not think there is any reasonable prospect that the Court would make any order in the nature of judicial review. As to the claim for damages for the alleged abuse of authority, or misfeasance in public office, it must again be said that, while the behaviour of the respondents might have constituted action which might require redress through administrative channels, it does not give rise to any claim for damages at the suit of the applicants. 27. It is relevant to add also that neither the second or third matter of which the applicant complains is mentioned in his application. They are, however, referred to in the affidavit filed in support of the application. For that reason I have dealt with them in these reasons. I do not think, therefore, that the applicant has an arguable case. For that reason also his application to extend the time within which to set down his appeal for hearing should be dismissed. 28. The application to extend the time within which to set this appeal down for hearing is, therefore, refused.