Phillis v Szenkovics No. Scciv-01-269

PHILLIS v SZENKOVICS
[2001] SASC 271
Civil (Ex Tempore)

LANDER J. This matter first came before me on 29 June 2001. The applicant made an application for a stay of orders made by a District Court Judge on proceedings brought by the Registrar of that court for contempt.
The applicant was a defendant to proceedings brought by his former de facto spouse under the De Facto Relationships Act 1996 (SA). The matter came on for hearing before Judge Sulan on 3 July 2000 and, on that afternoon, the parties advised the Trial Judge that the matter had settled and invited him to make orders by consent. Orders were made in accordance with the advice of the parties.
On 20 July 2000 an application was made by the respondent to these proceedings for an order directing the Registrar to issue a summons for contempt pursuant to rule 93.03.
On 21 July 2000 a District Court Judge made an order directing the Registrar to issue a summons directed to the applicant. A number of interlocutory proceedings eventuated as to the form of the summons, and a number of amendments were made from time to time. In the end result the summons charged the applicant with two counts of contempt arising out of the orders made by consent before Judge Sulan on 3 July 2000.
On 1 August 2000 the applicant pleaded not guilty to both charges. Thereupon the respondent brought her evidence in support of the application and the applicant responded. After a hearing, the District Court Judge found the applicant guilty of both counts of contempt.
On 10 January 2001 his Honour heard the parties’ counsel in relation to the orders which ought to follow from his findings of contempt, and he made the following orders:
“1.David Phillis be and is hereby sentenced to six calendar months’ imprisonment.
2.Execution of this order be suspended pursuant to rule 93.09 of the District Court Rules until 26 July 2001 on condition that before that date the sum of $50,000 is paid to Logan Brown Solicitors for and on account of Ms Lynn-Marie Szenkovics, being $25,000 in respect of the sum offered by Mr Phillis to purge the contempt of court, and $25,000 as a lump sum fixed on the basis of solicitor-client costs.
3.The order as to the operation of the consent orders of His Honour Judge Sulan made on 3 July 2000 be revoked with a note of the undertaking by Mr Phillis to continue to comply with that term of his bail which provided he would not make personal contact with Ms Lynn Marie Szenkovics until the expiration of the bail term on 26 July 2001.”
The Judge gave the parties liberty to apply for directions and orders.
On 25 January 2001 the applicant lodged a notice of appeal to this Court seeking orders setting aside the orders made by the District Court Judge on 10 January 2001.
These proceedings were first brought before me on 13 July 2001 on an application dated 29 June 2001 for a stay of the District Court Judge’s orders. In support of the application for a stay, the applicant filed an affidavit setting out the circumstances giving rise to the charge. He said that the appeal would be unlikely to be heard until about August or September 2001. He said that he did not have $50000 to comply with Judge Muecke’s orders. It was put to me that if he could not comply with payment by 26 July 2001, the applicant would be forced to serve his term of imprisonment because the appeal could not be heard in the meantime.
I raised three matters with the applicant’s counsel on that occasion. First, I directed his attention to rule 95.11, and that by operation of that rule, the appeal would lapse on 25 July 2001 unless it was set down beforehand. Secondly, I said there was no explanation, on the stay application, for the delay in the applicant prosecuting the appeal and bringing that application. Thirdly, I was of the opinion that there had been incomplete disclosure of the applicant’s financial circumstances and the change in those circumstances between the date of the hearing before the District Court Judge on 10 January 2001 and the date of the affidavit in support of the application.
The applicant sought an adjournment and the matter was adjourned until 26 July. I deliberately adjourned the matter until that date so that the applicant could set down the appeal before that date and be in a position to advise me on 26 July that the appeal had been set down.
The matter came on before me again on 26 July when I was advised that the appeal had not been set down, although an attempt had been made on the previous day to set the matter down.
An application has now been brought to me for an extension of time within which to set the appeal down for hearing. I am advised today that that is the only order sought and the application for the stay is abandoned.
There is no doubt that the applicant delayed in prosecuting this appeal. The applicant’s solicitor has filed an affidavit in which she has deposed to the applicant’s financial circumstances and his inability to provide sufficient funds for the preparation of the appeal books and the setting down of the appeal. She has also deposed to difficulties in communication with the applicant, who is employed as the manager of the Defence Support Centre at Woomera; the distance between Adelaide and Woomera has caused difficulties in communication.
Apparently, shortly before 25 July 2001, the applicant’s appeal books were prepared as was the praecipe to set the matter down for appeal. On 25 July 2001 the applicant’s counsel spoke to the respondent’s counsel about the appeal books. There was a dispute as to the contents of those appeal books, and the respondent’s counsel required a large number of documents, within the appeal books, to be removed. The applicant’s solicitor responded by removing the documents complained of.
The applicant’s solicitors then approached the registry to file the praecipe and the appeal books but were advised by the Registry of the Supreme Court that the registry would not remain open later than 5 o’clock to receive those documents. The documents could not be made ready by 5 o’clock and, therefore, the appeal was not set down on the last day, even though the applicant was in a position then to set it down.
It does not appear that any application was made under r 6.07 to open the registry later than 5 o’clock, but I understand from what has been told to me from the bar table that the applicant’s solicitors were told that the registry would not be opened later than 5 o’clock.
This matter came on for hearing before me on 26 July on the application for the stay. I advised counsel that the difficulty in pursuing the stay was the failure to set the appeal down. The matter was adjourned again until today.
On 26 July the applicant surrendered himself to the District Court and the District Court Judge issued a warrant for his arrest. The applicant is now serving the sentence of imprisonment imposed by the District Court Judge at the Mobilong prison. In those circumstances he no longer pursues the application for a stay, even though his appeal could not be heard before September.
In lieu thereof the applicant now only seeks an order for the extension of time within which to set the matter down for hearing. Where an application is made after the time set by the rule for setting the matter down, r 95.11 requires that the applicant establish ‘special circumstances’ for an order for leave to set the matter down. The rule has to be understood having regard to the decision of the High Court in Jackamarra v Krakouer (1998) 195 CLR 516. In that case the High Court indicated that it would ordinarily be appropriate to adopt a more liberal and benign approach to an applicant seeking an extension of time to set down an appeal, which has been lodged in time than an applicant who seeks an extension of time within which to appeal.
In my opinion the applicant has established special circumstances; those circumstances being that the applicant was in a position to set the matter down for appeal within the time prescribed, but was unable to do so, first because the respondent’s counsel required the removal of a number of documents from the appeal books, which the applicant’s counsel acceded to, and secondly, because the registry would not open after 5 o’clock.
In my opinion, the justice of the case requires the making of the order sought by the applicant, and I extend the time within which the applicant has to set down the appeal in action No.269 of 2001 until 4 o’clock on Friday, 3 August.
The applicant is to pay the respondent’s costs of and incidental to the application to stay the orders of the District Court Judge. The applicant is to pay the costs of and incidental to the application for the extension of time within which to set down the appeal. The costs are certified fit for counsel.

[2001] SASC 271

31 July 2001