Provatidis v A McFarlane & Sons Pty Ltd - [2021] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
PROVATIDIS v A MCFARLANE & SONS PTY LTD
[2021] SASC 142
Judgment of the Honourable Justice Hughes
10 December 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The appellant sought an extension of time to bring an appeal against a decision of the Magistrates Court that awarded the respondent the sum of $13,291.52 and dismissed the appellant’s counterclaim against the respondent.
Held, per Hughes J, refusing the extension of time to bring the appeal and dismissing the appeal:
1. The reasons that the appellant has submitted to explain the delay in initiating the appeal do not operate in favour of an exercise of the discretion to extend time.
2. The grounds of appeal do not disclose a reasonably arguable case such that it would be in the interests of justice to grant the extension of time to bring the appeal.
Magistrates Court Act 1991 (SA) s 40; Uniform Civil Rules 2020 (SA) r 12.1, r 22.4, r 214.1, referred to.
Jackamarra v Krakouer (1998) 195 CLR 516; Gallo v Dawson (1990) 93 ALR479; [1990] HCA 30; Kowalski v Sim & Ors [2019] 96 SASCFC 96; NM Civil Engineering v Sunshine Coast Surf Club [1987] 2 Qd R 401, applied.
Reyes v Dental Board of South Australia (2002) 83 SASR 551, discussed.
WorkCover Corp v John Holland Group Pty Ltd [2014] SADC 202; Abalso v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.

PROVATIDIS v A MCFARLANE & SONS PTY LTD
[2021] SASC 142
Magistrates Appeal: Civil
HUGHES J
Overview and outcome

The appellant, Ms Provatidis, owns a yacht. The respondent, A McFarlane & Sons Pty Ltd, is a ship builder and repair business. The yacht needed repairs and the appellant placed it with the respondent for that purpose in late 2017. There was a dispute about the cost of the repairs and the respondent brought a claim in debt against the appellant in the Magistrates Court. There was a dispute about the efficacy of the repairs and the appellant brought a counterclaim against the respondent.
The claim and counterclaim were heard together in a two-day trial conducted on 11 and 12 August 2020. Judgment was delivered on 3 September 2020. The Magistrate awarded the respondent the sum of $13,291.52 and dismissed the appellant’s counterclaim against the respondent.
The appellant did not pay the judgment sum. On 12 May 2021, the appellant initiated an appeal of the judgment in the Supreme Court.
Several preliminary hearings were held to advise the parties of the steps required to prepare the matter for appeal. The appellant has, since those preliminary hearings commenced, been unrepresented and participating in preliminary hearings by phone from Coober Pedy where she lives. This decision concerns whether the appellant should be granted an extension of time to institute her appeal.
For the reasons that follow, I refuse the appellant’s application for an extension of time to bring her appeal. It is therefore unnecessary to hear the parties further on the substantive appeal and the appeal is dismissed.
Brief factual background
Work was performed on the appellant’s yacht by the respondent at its premises in Port Adelaide. It was not disputed that the appellant paid the respondent a sum of $3,600.00 at one point whilst the yacht was under repair and the Magistrate found that this payment was made so that the respondent could purchase from a third party a part (a bow thruster) to install on the yacht. The respondent instituted the original proceedings to recover the amount invoiced for the works performed on the yacht in the sum of $13,291.52. The appellant contended that the works were incomplete and not to an adequate standard such that she was not liable to provide any further payment. The appellant counterclaimed a sum of $11,555.00 against the respondent for alleged damage caused to the boat, cleaning costs and charges incurred for the boat being in hardstand for 10 days while the works were being performed.
The appellant was represented prior to, but not at, trial. The respondent has been represented throughout the proceedings. The appellant gave evidence at the trial and called a lay witness, Mr Kapetanakis. The respondent called Mr McFarlane, a qualified shipwright and marine surveyor who undertook some of the work and oversaw other parts of the work performed on the yacht.
In the decision, the Magistrate made the following key findings in relation to the respondent’s claim:
·The appellant engaged the respondent to undertake work on the yacht;
·Work was performed between 5 and 21 December 2017;
·The appellant disputed the completeness and quality of the work and did not pay the respondent’s invoice but paid $3,600 which was the amount required for the purchase of a bow thruster which was installed on the yacht;
·There was no quotation provided before the works commenced but the charge was to be by the hour and would take about a week;
·Mr Kapetanakis was present on the yacht for much of the time that the respondent’s employees and trades worked on the yacht, whereas Ms Provatidis was in Coober Pedy for most of the time that the yacht was worked on;
·Additional works were requested by Mr Kapetanakis on behalf of Ms Provatidis during the period that the works were being undertaken;
·The hours of work performed on the yacht were recorded in Mr McFarlane’s diary;
·The appellant’s account of the amount of work done on the yacht was rejected;[1]
·The works were completed as submitted by the respondent;
·The appellant’s claim that the bow thruster was not fit for purpose was rejected because it was not wired up and tested as the appellant did not engage an electrician;
·The respondent’s invoice represented a fair and reasonable sum for the work performed;
·The sum of $3600 was paid by the appellant to the respondent and was payment for the bow thruster and not for labour; and
·The appellant did not, contrary to her evidence, make a payment of $5000 to Mr McFarlane in cash in person in connection with the works.
[1] McFarlane & Sons P/L v Provatidis [2020] SAMC 15 at [20].
The Magistrate also made various findings in respect of the counterclaim which do not require elaboration, except insofar as they asserted defective work, and to note that the appellant’s contentions were not proved and the counterclaim was dismissed.
The preliminary hearings prior to the appeal
When the appeal was first initiated, the appellant was represented by a lawyer who assisted in the preparation and filing of the grounds of appeal in May 2021. The appeal was listed for hearing on 25 August 2021.
The appellant ceased to be represented on or about 27 July 2021.
After she ceased to be represented, the appellant requested, by email correspondence on 12 August 2021, to vacate the date. A directions hearing was conducted on 18 August 2021 to hear the parties on the application. The appellant participated by telephone from Coober Pedy.
The appellant made the application on a number of bases. One was that she had, only a day prior to the directions hearing, received copies of the transcript of the trial, which she would need time to review for the appeal. She stated that since she was self-represented and unfamiliar with the court processes, she was unaware of the grounds of appeal filed on her behalf and that she now wished to pursue other grounds of appeal. She wanted to lead fresh evidence on appeal from an accredited boat surveyor. She had, at that stage, not confirmed a date on which the boat was to be assessed or how long would be required for a report to be furnished following the assessment.
She also stated that she was seeking legal advice and representation from community-based legal services for the appeal. However, no particular service had been retained or had provided an indication that representation or advice could be provided to her.
The appellant also submitted that her mental health was not presently at an adequate state to be prepared for the appeal listed on 25 August 2021. She provided a medical certificate which stated that she had received medical treatment and would be unfit to continue her usual occupation from 16 to 23 August 2021.
The application was opposed by the respondent.
At the conclusion of the directions hearing, I refused to re-list the substantive hearing listed on 25 August 2021. However, I granted leave to the appellant to file amended grounds of appeal within a specified period.
On 23 August 2021, the appellant renewed her request to vacate the hearing date of 25 August 2021 by correspondence sent to the Court. She repeated that for reasons related to her mental health, she could not represent herself at the hearing. Late in the afternoon of the following day, which was the day prior to the listed hearing, she provided a further medical certificate dated 24 August 2021 which stated that she was receiving medical treatment for the period of 24 August 2021 to 13 September 2021. Given the lateness of the request, I determined to treat the document as a request for an adjournment to be dealt with at the substantive hearing the following day.
The appellant was contacted by phone at the commencement of the appeal hearing on 25 August 2021. The appellant repeated the arguments for vacating the appeal hearing and re-listing it that she made at the previous directions hearing on 18 August 2021.
I indicated to the parties that in light of the certificate I was prepared to accept that the appeal hearing should be vacated, and sought submissions from the parties as to when it should be re-listed. In that context, the appellant indicated that she would prefer to have her appeal determined on the basis of written submissions rather than an oral hearing.
Counsel for the respondent was not opposed to the appeal being determined in such a manner. However, the respondent submitted that it would be appropriate to proceed by way of a preliminary determination on the papers as to whether the appellant should be granted an extension of time to initiate the appeal given that the respondent opposed an extension being granted. I accepted that to be an appropriate approach.
Accordingly, I made orders at the hearing on 25 August 2021:
·permitting the appellant to file amended grounds of appeal by 27 September 2021;
·requiring the appellant to file written submissions on the extension of time to bring the appeal by 27 September 2021;
·requiring the respondent to file written submissions on the extension of time to bring the appeal by 11 October 2021;
·permitting the appellant to file a reply by 18 October 2021; and
·indicating to the parties that the Court would consider the issue of the extension of time to bring the appeal on the papers after 18 October 2021.
The appellant did not file amended grounds or written submissions in accordance with the orders. On 8 October 2021, the appellant filed an interlocutory application seeking an extension of time to comply with the orders I issued on 25 August 2021. The respondent filed its submissions on 11 October 2021.
Bearing in mind the fact that the appellant resides in Coober Pedy, I determined to seek the parties’ views on a proposal to deal with the appellant’s application on the papers and to afford the parties with a period of time to provide written submissions on the appellant’s interlocutory application. A letter dated 14 October 2021 was sent by email from my chambers to the parties outlining the Court’s proposal in which the parties were to notify the Court if the proposal was objected to, by close of business the next day.
An email was received from the legal representative of the respondent indicating that the respondent did not object to the proposal. The appellant did not respond. I proceeded to determine the appellant’s interlocutory application for an extension of time to comply with my orders of 25 August 2021 on the written materials that the Court had received, in line with my proposal to the parties and in accordance with rules 15.1 and 102.2(5) of the Uniform Civil Rules 2020 (“UCR”).
I refused the interlocutory application on 29 October 2021 and issued reasons for my decision to the parties on that same date.[2] In summary, I refused the application because of the uncertainty of the length of an extension sought, the amount of time that the appellant had been afforded to advance her appeal, the confined nature of the issue she was asked to address in her written submissions, and the failure of the medical evidence to directly address her ability to file documents.
[2] Ruling of Hughes J in Provatidis v A McFarlane & Sons Pty Ltd (CIV-21-004578) dated 29 October 2021.
The effect of my refusal to extend time is that it remained to be determined whether the appellant should be granted an extension of time to bring the substantive appeal, so that she could proceed to be heard on that appeal notwithstanding that it was not initiated within the required timeframe. The remainder of this decision addresses that issue.
Extension of time to bring the appeal
An appeal of a Magistrate’s judgment is instituted under s 40 of the Magistrates Court Act 1991 (SA) and in accordance with the rules outlined in Chapter 18 of the UCR. Relevantly, rule 214.1 of the UCR imposes a requirement on an appellant to bring an appeal within 21 days of the decision complained of. The judgment sought to be appealed was delivered on 3 September 2020 and the appellant’s Notice of Appeal was filed on 12 May 2021. The appeal has been instituted approximately 7 and a half months outside of the requisite timeframe set for such an appeal to be initiated.
The grant of an extension of time to institute an appeal entails an exercise of the Court’s discretion. The Court has a discretion to vary the time fixed by rule 214.1 in the exercise of its inherent powers as reflected in rule 12.1(2)(c) of the UCR. The factors relevant to the exercise of the discretion to extend time are settled.
The primary factors relevant to the determination of an application for an extension of time in a general sense are the length of the delay, the reasons for the delay, the hardship to the applicant for an extension if it is not granted and the prejudice to the respondent if it were to be granted.[3] Other factors may need consideration depending on the nature of the requirement in relation to which the application is brought.
[3] Jackamarra v Krakouer (1998) 195 CLR 516, 542-543 (Kirby J).
Where the extension is sought for the initiating of proceedings, as opposed to the taking of a procedural step, the starting point is that the respondent has a vested right to retain the judgment.[4] That right is not to be disturbed unless it would cause an injustice not to do so. To assess the potential for injustice, an assessment of whether the appellant has an arguable case becomes a relevant criterion. The distinction between consideration of an extension of time to comply with a procedural rule and to bring proceedings was analysed in Jackamarra v Krakouer,[5] in which the High Court considered an appeal against a refusal to give the appellant an extension of time to comply with a procedural rule. The substantive appeal in that case had been instituted within the requisite timeframe however the appellant had failed to comply with a procedural rule that required the hearing for the appeal to be set down within 12 weeks of the institution of the appeal. In considering the principles relevant to the appeal of the extension of time to comply with the procedural rule, the High Court discussed obiter the principles that were relevant to an extension of time to institute an appeal.
[4] Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 at [3] (McHugh J).
[5] (1998) 195 CLR 516.
Brennan CJ and McHugh J observed that consideration of an extension of time for the institution of an appeal entails, in addition to considerations applying to extensions of time for compliance with other procedural rules, consideration of the merits of the proposed appeal. Their Honours stated:[6]
In the Full Court, however, Malcolm CJ, with whose judgment Rowland and Franklyn JJ agreed, said:
"In such a case as the present, there are usually four main factors to be considered in exercising the Court's discretion to extend time, namely, the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent (29)." (Our emphasis.)
Esther Investments Pty Ltd v Markalinga Pty Ltd, like the present case, was concerned with the failure to enter an appeal for hearing in accordance with 0 63, r 7(1) of the Rules of the Supreme Court 1971 (WA). That sub-rule provides that "[u]nless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal". Esther Investments, like the present case, was therefore concerned with a purely procedural application to extend time for doing an act in respect of an appeal already lodged. Yet the Full Court in Esther Investments approached the exercise of discretion as if it were dealing with an application to extend the time for lodging an appeal. Indeed, the four factors to which Malcolm CJ referred in this case come from the judgment of Kennedy J in Esther Investments which, as Kennedy J acknowledged, derived from the judgment of the English Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd (33). But Palata was concerned with an application to extend the time for lodging an appeal against a judgment determining the substantive rights of the parties.
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 of 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.
(citations omitted)
[6] Ibid at 520-521 [5]-[7] (Brennan CJ and McHugh J).
Because of the appellant’s failures to comply with the procedural steps as outlined earlier in this judgment, the Court has not received any further submissions or materials from the appellant concerning her need for an extension of time to bring the appeal apart from the information that may be elicited from the Notice of Appeal.
The Notice of Appeal, filed during a period in which the appellant was legally represented, outlines the following grounds for seeking an extension of time to bring the appeal:
1.The Appellant has been unrepresented until recently.
2.The Applicant suffers from Complex Post Traumatic Disorder and is unable to manage procedural deadlines in an orderly manner.
3.The Applicant has experienced difficulty obtaining a copy of the transcript of the trial and still does not have a copy.
The following grounds of appeal are outlined in the Notice of Appeal:
1.The learned Magistrate refused to permit a view of the yacht upon which the works the subject of the dispute were undertaken.
2.The learned Magistrate refused to admit into evidence documents tendered by the Respondent which evidenced an expert opinion that the works undertaken by the Applicant were defective.
3.The claim was commenced in the name of a non-existent entity being “A McFarlane and Sons (ABN 62 733 016 785)” such that the proceedings were a nullity which could not be cured by amendment.
Delay

The length of the delay is a matter to be assessed by reference to the period the UCR requires for the action to be taken, which in this case is 21 days. A delay of 7 or so months is significant. However, such a delay, of itself, might not defeat the appellant’s application if other factors militated in favour of a grant of an extension of time such as the reasons for delay and the merits of the appeal.
The appellant was represented before the trial but not during it. She then had different lawyers representing her for a period of several months during which the appeal was lodged. She has not asserted that she did not know that she had a right of appeal until she obtained representation for the second time. It is clear that she has particular ideas as to why the original decision was wrong as she complains that the grounds of appeal filed on her behalf were incomplete, and there is no reason to believe that she did not have those ideas immediately upon reading the judgment. I do not accept that the fact that she was not represented at the time of receiving the judgment was a barrier to filing the appeal.
The appellant states that her post traumatic stress disorder prevented her from managing procedural deadlines in an orderly manner. No medical report supporting the diagnosis or its effects was provided to the Court. The Court will not usually and does not in this case accept such an assertion without the expert support that an assertion of that type requires. In any event, assertion of an illness of the type described by the appellant, without more, does not account for the failure to file a document or to instruct another to do so on her behalf.
In Reyes v Dental Board of South Australia,[7] the Supreme Court considered an application for an extension of time to bring an appeal against a decision of the former Dental Professional Tribunal. After considering the merits of the appeal and, particularly, the grounds of appeal raised, Duggan J made the following observations on the question of the extension of time, which are apt in respect of the present case:[8]
I return to the application for an extension of time within which to appeal. Section 75(2) of the Dentists Act 1984 requires an appeal to be instituted within 60 days of the date of the decision appealed against. The Supreme Court may dispense with this requirement if it is satisfied that it is just and reasonable in the circumstances to do so. The period of the delay, the reasons for it and the consideration as to whether injustice would be done if the application were not granted are all matters relevant to take into account in the exercise of the discretion.
The appeal in this case was not initiated until approximately 12 months after the decision of the Tribunal was announced. I accept that the applicant has suffered from anxiety and depression since 1998, but in my view this cannot explain the long period of delay. There is nothing else in the material before me which satisfactorily explains why the appeal was not lodged in time. For the reasons which I have given, any appeal would be without merit.
[7] (2002) 83 SASR 551.
[8] Ibid at [53].
The appellant maintains that she had difficulty obtaining the transcript of the original hearing. The grounds that were relied upon in the Notice of Appeal were filed before the transcript was obtained. The appellant was not prevented from filing those grounds immediately after obtaining judgment and applying to supplement the grounds, if she considered it appropriate to do so, at a later date once the transcript was obtained. Such an action would have put the respondent on notice of the appeal which, in light of the steps that have been taken by the respondent, may have influenced its enforcement actions. Notwithstanding the fact that she has since obtained the transcript and was given an opportunity to file amended grounds, the appellant did not do so.
The grounds that the appellant has submitted to explain the delay do not operate in favour of an exercise of the discretion to extend time.
Consequences of a grant or refusal
I have considered the consequences upon the appellant of a refusal to extend time to bring the appeal. The appellant will be denied an opportunity to overturn the decision if the extension is not granted. She will remain liable to meet the enforcement proceedings brought against her.
I have also taken into account the prejudice to the respondent if the extension is granted. The respondent has commenced bankruptcy proceedings against the appellant in respect of the debt. Those proceedings were (when this Court was last informed of their progress) adjourned pending the outcome of these proceedings. The respondent is a small company with a judgment in its favour. It has spent money on obtaining the judgment and then in attending the court on the numerous procedural steps taken by the appellant to delay the hearing of her own appeal. I accept that the respondent is financially prejudiced by the grant of an extension of time. No payment has been made that would ameliorate the respondent’s position pending the outcome of the appeal.
No arguable case
The final consideration is whether, when assessed on the necessarily simple basis that can be achieved without the benefit of fulsome submissions, the grounds of appeal disclose an arguable case. Arguable grounds of appeal are relevant to the consideration of what the justice of the matter requires, though their establishment is not determinative. Even arguable grounds, alone, do not demand the grant of an extension: Kowalski v Sim & Ors.[9] In contrast, unarguable grounds will militate strongly, if not definitively, against the grant of an extension of time to bring an appeal.
[9] [2019] 96 SASCFC 96 at [109] (the Court).
Ground 1 – Refusal to permit a view of the yacht
The orders recorded by the Magistrates Court during the course of the proceeding make no reference to a refusal or a consideration of an application for a view to be conducted. It would appear that there was no formal interlocutory application on the Magistrates Court file by which the appellant sought a view to be conducted during the trial.
During one of the preliminary hearings in this appeal, the respondent’s counsel (who was counsel in the original trial) informed the Court that the appellant’s complaint might be understood to arise from the fact that the appellant’s witness, Mr Kapetanakis, whilst under cross-examination invited counsel for the respondent to go and inspect the yacht, as disclosed in the transcript.[10]
[10] See, Transcript of hearing on 12 August 2020 in AMCCI-19-1261 at p. 212 (lines 21-24).
The appellant has not identified the occasion of any application for a view and I am not satisfied that there was an application or a ruling or refusal by the Magistrate to undertake a view. In any event, the appellant would need to establish much more before it might be concluded that a refusal to undertake a view (if such a refusal occurred), had a material effect on the outcome. As submitted by the respondent, and is evident from the judgment, a view was only potentially relevant to the appellant’s counterclaim and not directly relevant to the respondent’s claim in debt. Further, the appellant would have to show that a view was likely to have led to different factual findings than those that were made. Such an argument most likely has merit where reasons for the decision disclose that the Court has been unable to assess the evidence properly and would have been assisted to do so had the Court conducted a view. A review of the reasons for decision do not disclose that the Magistrate was hampered in understanding the evidence by the lack of a view.
The appellant has not established an arguable case in respect of this ground of appeal relevant to the discretion to extend time to bring the appeal.
Ground 2 – Refusal to admit into evidence documents tendered by the respondent about an expert opinion
This ground of appeal appears to refer to a bundle of documents that the Magistrate refused to admit into evidence on the first day of trial during the appellant’s cross-examination of the respondent’s witness, Mr McFarlane.[11] The documents were objected to by the respondent’s counsel on the basis that they were emails, quotes and estimates from third parties regarding the yacht that purported to give opinions about the adequacy of the bow thruster on the yacht and the desirability of installing a larger bow thruster. The respondent formed the view from the appellant’s descriptor of the documents that they purported to contain expert opinion. Counsel for the respondent alleged prejudice arising from the appellant’s failure to discover or disclose the documents prior to the trial. Counsel for the respondent further objected to the proposed tender of the documents without calling the authors as witnesses.
[11] See, Transcript of hearing on 11 August 2020 in AMCCI-19-1261 at pp. 52-58.
In refusing to admit the documents into evidence, the Magistrate made the following ruling:[12]
The claim was commenced on 3 April 2018 (sic) and the applicant obtained a default judgment on 23 May 2019. The respondent applied to have that judgment set aside and was successful in doing so. An order was made setting aside the default judgment on 22 August 2019. This matter has been on foot now for nearly 12 months. The respondent was granted leave to file her amended defence and cross-claim on 31 January 2020. There’s therefore, been a period of some months from at least January this year, if not earlier, when the respondent ought to have had in mind how she was going to prosecute her claim and the experts reports that she was going to rely on so that we are not in the situation that we are today, where the applicant would be caught by surprised (sic) and prejudiced if these five pages were sought to be tendered. Particularly, at this point where Mr McFarlane, the witness for the applicant is under cross-examination and his counsel is not able to take instructions. I uphold the objection to the tendering of these documents so they won’t be allowed to be produced in evidence. For reasons of the late discovery and also that they are not compliant with the rules as to experts reports and that those expert reports ought to have been – any experts reports ought to have been served in compliance with previous orders made by me or an application ought to have been made before today seeking leave as I observed in my remarks on 18 June 2020.
[12] Transcript of hearing on 11 August 2020 in AMCCI-19-1261 at pp 57-58.
I do not consider that the ground of appeal based on the Magistrate’s refusal to admit the documents is arguable. It was clearly open to the Magistrate to refuse to admit the evidence because of the unfairness it brought to the respondent, and the appellant’s unwillingness to make the authors of the documents available for cross-examination in circumstances in which their evidence would almost certainly be disputed. It is further evident from the Magistrate’s ruling that case flow management demanded that the appellant be required to meet the case without further delay after the opportunities for preparation that had been granted to her in the pre-trial stages.
In any event, as with the first ground, the second ground of appeal in itself establishes no defect in the outcome of the case. Not only would the appellant have to show that the documents should have been admitted, but that their receipt would have had the effect that the outcome of the case was reasonably likely to have been different if the documents had been admitted. There is nothing before the Court that would indicate that the appellant has an arguable case in this regard.
Ground 3 – Claim commenced in the name of non-existent entity
The appellant’s third ground is that the proceedings were defective in that they were brought by a business name and not a legal entity capable of initiating legal action.
In its written submissions, the respondent argued that an error in the name of the respondent when the claim was first filed did not invalidate the proceedings because of the operation of rule 22.4 of the UCR, and that in any event an amendment was sought and made during the trial such that the judgment was entered with the correct party name.
Rule 22.4 reads as follows:
(1) A proceeding or appellate proceeding is not invalid merely due to an error in the joinder or name of a party, including (without limitation)—
(a) an error in the name, description or capacity of a party;
(b) the non-joinder of a necessary or proper party; or
(c) the joinder of a party who should not have been joined.
(2) The Court may make such orders on such conditions as it thinks fit in respect of an error of joinder or name of a party.
The UCR commenced operation on 18 May 2020 and the Claim was first filed by the respondent on 3 April 2019. The transitional provision outlined in rule 1.4 of the UCR states that unless the Court otherwise orders, the UCR applies to a proceeding commenced and a step in a proceeding taken on or after the commencement date. A ‘step in a proceeding’ is defined in rule 2.1 of the UCR to include “a document filed, process issued, action taken or order made in the proceeding”.
On the second day of trial on 12 August 2020, the Magistrate ordered that the name of the applicant (the respondent on appeal) be amended to A. McFarlane & Sons Pty Ltd ACN 008 011 694, on the respondent’s unopposed application. It remains unclear whether the Magistrate made this order by exercising the power in rule 22.4 of the UCR and if so, whether an application to correct an error in the name of a party constitutes a ‘step in a proceeding’ such that the power in rule 22.4 could be exercised. It is not necessary for the Court to determine this question in this application for an extension of time. Even if it were found that the former Magistrates Court (Civil) Rules 2013 (SA) applied to the application to amend the respondent’s name in the claim, the Magistrate had the power to make such an order under rule 10(a) of the Magistrates Court (Civil) Rules 2013 (SA) which permitted an amendment to any defect or error in an action or proceeding.
In any event, if there was a defect in the bringing of the proceedings, it was cured with the making of the order to amend the respondent’s name in the proceedings.[13] It must be recognised that this is not a situation in which the respondent has commenced proceedings against the wrong party, with the attendant consequences upon the wrongly named party and the party who is belatedly identified as the correct party.[14] There was no asserted misunderstanding by the appellant as to who brought the action against her or prejudice alleged as a result of the correction that was made during the trial. I do not consider that the appellant has an argument to put that the decision was wrong on this basis, and the extension of time application is not assisted by this ground of appeal.
[13] See, NM Civil Engineering v Sunshine Coast Surf Club [1987] 2 Qd R 401.
[14] As occurred in WorkCover Corp v John Holland Group Pty Ltd [2014] SADC 202.
For the purposes of considering the application to extend time, the appellant has not established that any of the grounds of appeal that have been filed are arguable.
Notwithstanding the appellant’s unrepresented status, it would be ambitious and improper to embark on a consideration of grounds that the appellant might have added to her filed grounds should she have taken advantage of the additional time granted to her to do so. However, it may be observed that a significant determinant of the outcome of the original proceedings was the findings of credit made by the Magistrate which were not favourable to the appellant. The Magistrate preferred the respondent’s witness regarding the agreements about the work to be performed on the yacht.[15] The appellant’s witness, Mr Kapetanakis gave evidence that contradicted the appellant’s evidence on the records that had been kept regarding the work performed.[16] The Magistrate expressed “serious concerns about the reliability of his and Ms Provatidis’ evidence”[17] and about their honesty in respect of her claim to have paid the respondent an additional $5000.[18] On the issues central to the success of the respondent’s claim, the Magistrate accepted the evidence of the respondent’s witness, Mr McFarlane, and preferred it over the evidence of Ms Provatidis or Mr Kapetanakis where the evidence was inconsistent. Had she been granted an extension of time, the appellant would have faced a significant hurdle in persuading the Court to conclude that these conclusions, drawn by the Magistrate during the trial having seen and heard the appellant and the other witnesses, should be overturned so that findings in favour of the appellant’s case could be made.[19]
[15] McFarlane & Sons P/L v Provatidis [2020] SAMC 15 at [13].
[16] Ibid at [19].
[17] Ibid at [20].
[18] Ibid at [38].
[19] See, Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.
Conclusion
Consideration of each of the relevant factors militates against the grant of an extension of time but consideration of the factors in aggregation creates a strong case against such an extension of time for the bringing of the appeal. Accordingly, the appellant’s application for an extension of time to bring the appeal is dismissed, and the appeal is dismissed in its entirety. I will hear the parties as to costs.