Raedel & Raedel v Shahin - [2018] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
RAEDEL & RAEDEL v SHAHIN
[2018] SASC 95
Judgment of The Honourable Justice Hinton
10 July 2018
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
Application to reinstate two appeals (SCCIV-1117 of 2017 and SCCIV-1118 of 2017) lapsed by operation of rule 296(2) of the Supreme Court Civil Rules 2006. A judge of the Court ordered that the appeals be heard together.
The primary proceedings subject of each appeal were related. The appellants and respondent live next door to each other in the suburb of Burnside. The primary proceedings concerned, though not exclusively, a retaining wall that formed the boundary between the parties' properties. In the proceedings to which appeal SCCIV-1117 of 2017 relates one of the main contentions was that the retaining wall as built constituted a nuisance. Whilst in the proceedings to which appeal SCCIV 1118 of 2017 relates the issues primarily concerned compliance in the construction of the retaining wall with the Development Act 1993 (SA).
On the present application three questions arose for determination:
1.      Does rule 296(2) of the Supreme Court Civil Rules 2006 and the requirement that there exist special reasons for the reinstatement of an appellate proceeding as referred to therein apply to each of the appeals?
2.      If the answer to (1) is “yes”, are there special reasons for the reinstatement of the appeals?
3.      If the answer to (1) is “no”, should the appeals be reinstated?
Held:
1.      The requirement that special reasons be established before an appellate proceeding may be reinstated does not apply to the appeal in this case because no order dismissing those appeals was made under rule 296(1).
2.      In view of the answer to the first question no need arises to answer the second.
3.      An extension of time in which to set the appeals down should be granted. Whilst the appellants could have proceeded with greater expedition, it cannot be said that the delay is deliberate or the prejudice to the respondent so great as to warrant denying the appellants the right to appeal.
Supreme Court Civil Rules 2006, rule 287, 296; Supreme Court Civil Supplementary Rules 2014 rules 239, 240, 242, referred to.
Jackamarra v Krakouer (1998) 195 CLR 516; Hall v City of Burnside (No 8) (1996) 186 CLR 541, applied.

RAEDEL & RAEDEL v SHAHIN
[2018] SASC 95
Application
HINTON J:
Introduction

This is an application to reinstate the appeals in actions SCCIV 1117 of 2017 and SCCIV 1118 of 2017 (the appeals).
The primary proceedings subject of each appeal were related. The appellants and the respondent live next door to each other in the suburb of Burnside. The primary proceedings concerned, though not exclusively, a retaining wall that formed the boundary between the parties’ properties. That retaining wall was erected by the appellants at the time that they built their home. In the proceedings to which appeal SCCIV 1117 of 2017 relates one of the main contentions was that the retaining wall as built constituted a nuisance. Whilst in the proceedings to which appeal SCCIV 1118 of 2017 relates the issues primarily concerned compliance in the construction of the retaining wall with the Development Act 1993 (SA).
Because neither appeal was set down within six months of commencement, both have lapsed by force of rule 296(2) of the Supreme Court Civil Rules 2006 (SCCR), hence the application now made. The application is opposed. Three questions arise for determination; first, does rule 296(2) SCCR and the requirement that there exist special reasons for the reinstatement of the appellate proceedings as referred to therein apply to each of the appeals? Second, if the answer to the first question is, “yes”, are there special reasons for the reinstatement of the appeals? Third, if the answer to the first question is, “no”, should the appeals be reinstated?
Background
The appeal subject of action number SCCIV 1117 of 2017 is against orders made by a judge on 31 August 2017 after a trial in the District Court.[1] The appeal in action SCCIV 1118 of 2017 is against orders made on the same day by the same judge but in relation to an action instituted in the Environment Resources and Development Court.[2] As mentioned the primary cause of action in the District Court matter was an action in nuisance whilst the Environment Resources and Development Court matter concerned compliance with the Development Act 1993 (SA). In each case the appeals are to the Full Court, are stated in the Notices of Appeal to be instituted as of right, and were commenced on 19 September 2017 with the filing of Notices of Appeal[3] within the 21 day time limit prescribed by the Rules.[4] A Judge of this Court ordered that the appeals be heard together.[5]
[1]    Shahin v Raedel & Another [2017] SADC 92.
[2]    Shahin v Raedel & Another [2017] SAERDC 90.
[3]    An appeal is commenced by the filing of a Notice of Appeal; Supreme Court Civil Rules 2006, rule 282(1).
[4]    Supreme Court Civil Rules 2006, rule 281(1).
[5]    Order made 20 October 2017.
Rule 296(2) SCCR has two parts. The first part of that rule provides that unless an appellate proceeding is set down for hearing within six months after the proceeding is commenced or a longer time allowed by the Court, the proceeding is taken to have been discontinued and lapses.
Rule 242(2) of the Supreme Court Civil Supplementary Rules 2014 (SCCSR) provides that an appellate proceeding is set down when the party having carriage of the proceeding files with the Court three sets of the case book(s) in hard copy, lodges a USB or disk containing an electronic copy of the case book that is, whenever possible, OCR searchable, and files a completed Information Sheet in form 54.[6]
[6] Rule 242 was deleted and replaced by the Supreme Court Civil Supplementary Rules 2014 (Amendment No 8), Gazette, 28 November 2017, 4793. See footnote 8 below. Previously the content of what was to be filed to set the appeal down for hearing was contained in rule 242(3). Under the previous rule 242(3), parties were required to file a request to set an appeal down for hearing in form 53, three sets of case books in hard copy and email a set of the case books to the Court and the other parties.
The format and content of a case book is the subject of rule 239 SCCSR. Rule 239(2) SCCSR is prescriptive of the position of the index in the case book and its content. Obviously in settling the index the content of the case book or case books is determined. Rule 240(1)(a) SCCSR provides that when an appeal is as of right, as here is contended, the appellant is to lodge and serve on all other parties a draft electronic index to the case books as soon as is practicable and in any event within 21 calendar days after the filing of the notice of appeal. In this case then, the appellants were required to lodge and serve a draft electronic index by 10 October 2017.
Under rule 240(4) SCCSR,[7] upon the draft index being lodged with the Court, the Registrar or the Appeals Clerk will liaise with the parties to settle the draft index as soon as possible. Once the index to the case book is settled, and within seven calendar days of the index being settled, unless the Registrar or Appeals Clerk otherwise directs, the case books are to be lodged with the Court and served on the other parties by the appellant pursuant to rule 240(6). Further, the proceeding is to be set down, in the sense already explained (i.e. in compliance with rule 242(2) SCCSR) for hearing within that same seven day period.[8]
[7] Rule 240 was deleted and replaced by the Supreme Court Civil Supplementary Rules 2014 (Amendment No 8), Gazette, 28 November 2017, 4793. Previously rule 240(4) provided that following lodgement of a draft index to the case books, the Registrar would make an appointment to settle the draft index no less than 14 calendar days after the lodgement. This process is now completed administratively without appointment and as soon as possible.
[8] Rule 242 was deleted and replaced by the Supreme Court Civil Supplementary Rules 2014 (Amendment No 8), Gazette, 28 November 2017, 4793. Previously rule 242(1) provided that the proceedings were to be set down by the appellant or the party having carriage of the proceedings within five business days after settling the draft index to the case books. The substance of that rule is now contained in rule 240(6). The effect is to streamline the previous rules 242(1) and 240(5). The distinction between setting the appeal down within 5 business days or now within 7 calendar days is of no consequence in this case.
It is common ground that neither of the appeals were set down within the six month time limit. The appellants contend that the reason for their non-compliance lay primarily in difficulties encountered in preparing the case books. The respondent does not doubt that the preparation of the case books was challenging, however contends that the appellants have been less than diligent and have deliberately dragged the process out.
In support of their applications the appellants filed three affidavits sworn by Katherine Young. The first on 17 May 2018, the second on 1 June 2018 and the third on 4 June 2018.
As part of its case in opposition the respondent filed an affidavit sworn by Andrew Bullock on 30 May 2018.
None of the parties applied to cross-examine either Ms Young or Mr Bullock.
In some places the affidavits received contain submissions. I have ignored those submissions and only relied upon the affidavits for the factual material they contain.
In her first affidavit Ms Young, a solicitor in the employ of the law firm, Fenwick Elliott Grace (FEG), tells how FEG did not act for the appellants at trial but was subsequently retained to conduct the appeal proceedings. The Notices of Appeal were filed on 19 September 2017 by the appellants’ former solicitors. On 6 December 2017 FEG filed Notices of Acting in this Court.
Soon after being retained FEG was instructed to seek leave to amend the Notices of Appeal and to apply for the orders made by the District and ERD Courts on 31 August 2017 as amended to be stayed. At or around this time FEG were advised by the appellants’ former solicitors that they would not hand over the appellants’ file on account of the fact that fees remained unpaid. In early December the appellants provided FEG with copies of the documents that they personally possessed. The appellants’ did not have a complete copy of all exhibits tendered.
I pause to observe that the substantive proceedings occupied 19 sitting days, 182 exhibits were tendered and the transcript ran to 1959 pages.
On 11 December 2017 the stay applications were filed in this Court. I note that on 12 December 2017 the respondent filed an interlocutory application (FDN 10) seeking that the appeals be dismissed or in the alternative, that the appellant file any amended notice of appeal within three days, and that the appeal be set down in February 2018. Interim stays were granted on 22 December 2017 pending further material being filed in support of the applications.
On 29 January 2018 amended Notices of Appeal were filed. The amendments to the Notices of Appeal required revision of the index to the case books.
On 14 February 2018 orders continuing the interim stay orders until the hearing of the appeal were made. Those orders were made by consent upon certain undertakings being given by the parties. The seventh undertaking was that the appellants would comply with the Court’s directions as to the listing of the appeal with due expedition with a view to the appeal being heard in or prior to June 2018. Orders were also made granting the appellants leave to file and serve a third amended notice of appeal in action SCCIV 1118 of 2017[9] and a second amended notice of appeal in action SCCIV 1117 of 2017. The transcript of the hearing on 14 February 2018 records counsel for the respondent requesting that the appellants attend to the amendment of the index to the case books in the light of the amended Notices of Appeal being filed as quickly as possible. The discussion that then took place resolved with counsel agreeing to settle the amended index “with all reasonable diligence”. Whilst the transcript also makes plain that the parties were endeavouring to work towards a June date for the hearing of the appeal, no directions were given by the Court for the purposes of the seventh undertaking.
[9] The second amended Notice of Appeal in SCCIV 1118 of 2017 was filed on 4 October 2017.
Counsel settled the case book index on 13 March 2018.
On 22 March 2018 the settled index was approved by the Appeals Clerk. That same day the parties were advised that the Chief Justice had approved the filing of an electronic case book.
Pausing here, time for the purposes of rule 240(6) SCCSR lapsed on 29 March 2017. The rules provide for no immediate consequence for failing to set down an appeal within the time frame prescribed by rule 240(6) SCCSR. Bearing in mind that the seven day time limit may be extended by the Registrar, this Court is entitled to expect the time limit contained in rule 240(6) SCCSR to be complied with. That time limit, together with the other time limits set in the rules dealing with appeal proceedings, are part of a regime calculated by the Court to assist it in the expeditious administration of business. Here FEG did not commence to compile the case book until 26 March 2018. By this time FEG must have known that compiling the case book would take some time. They did not seek any extension of time from the Registrar, the Appeals Clerk or the Registrar’s delegate.
At no time in the preparation of the case book has FEG been able to obtain the appellants’ files from their previous solicitors. On the hearing of the current application counsel for the appellants explained:
… the previous solicitors say they’re owed money, they’ve refused to release the file and they’ve said that the conduct rule only requires them to release a document which is necessary for an appeal.
So they’ve said that you tell us what document you need, document by document, we’ll vet it, document by document to see if it’s necessary, and then we will give it to you when you pay the amount we say is owed.
Counsel for the respondent accepted this.
I have no doubt that the preparation of the case book was a significant task. I am told it required the assembly of 117 documents provided in hard copy necessitating that each be scanned, hyperlinked and given separate item numbers. Further the documents and each page of which they are comprised were required to be sequentially numbered. To achieve this complete and adequate copies of all documents to be included had to be assembled. If a document was incomplete, inadequate, or unavailable, the preparation of the case book in the ideal form was impeded.
In her first affidavit Ms Young tells of the difficulties encountered by FEG in obtaining complete and adequate copies of all exhibits tendered at trial (which in some cases extended to many pages) that were required to be included in the case book. It appears that FEG presumed that the documents provided by the appellants contained accurate and adequate copies of everything needed. Not long after commencing to compile the case book in March 2018 it became apparent that this was not the case. With respect to some of the exhibits the assistance of the solicitors for the respondent, Cowell Clarke, was required. That entailed a series of communications between 28 March 2018 and 5 April 2018 accompanied in some instances by copy documents.
On 11 April 2018 Mr Bullock, a solicitor employed by Cowell Clarke who had carriage of the matter for the respondent, sent an email to FEG advising that the appeals had lapsed. The following day FEG provided Cowell Clarke with an electronic copy of the case book (the first case book).
On 13 April 2018 Cowell Clarke advised FEG of concerns it had with certain of the contents of the first case book.
On 23 April 2018 FEG was provided with an electronic copy of the exhibits tendered at trial by the appellants. The quality of the electronic copy was superior to that of the hardcopies used to prepare the first case book. In addition Ms Young attended at the registry to inspect the court file in light of some of the concerns raised by Cowell Clarke. FEG then set about improving the case book.
On 1 May 2018 FEG sent an amended electronic case book to Cowell Clarke (the second case book). The following day Cowell Clarke responded repeating that the appeals had lapsed and, in addition, and in any event, raising concerns with the second case book.
FEG proceeded to review the second case book in the light of Cowell Clarke’s concerns. It was determined that to overcome some of those concerns it was necessary to uplift the court file for the purposes of inspecting and scanning any documents not in the second case book or in that case book but which were incomplete or inadequate. FEG uplifted the court file on 7 May 2018 and returned the same on 9 May 2018.
On 7 May 2018 Ms Young advised Cowell Clarke of the steps being taken to finalise the case book. A week later Cowell Clarke responded indicating that it no longer wished to engage in communications regarding interlocutory steps in lapsed appeals.
By 17 May 2018 FEG had completed putting the case book together addressing the latest of Cowell Clarke’s concerns and other issues that had arisen (the third case book). An electronic copy of the third case book has not been filed but a copy was exhibited to Ms Young’s first affidavit filed in support of the present application.
Mr Bullock is a solicitor in the employ of Cowell Clarke. He, along with Mr Watts, a partner at Cowell Clarke, had the day to day carriage of the appeals on behalf of the respondent. In his affidavit Mr Bullock commences by referring to the appellants’ applications in the courts below for an urgent trial. Those applications were granted and the matters heard expeditiously. However, since the conclusion of the trials the appellants have moved less quickly. The consequence of the appellants’ non-compliance with the rules in relation to the appeals has been the loss of the opportunity to have the appeals heard in each of February, April and June 2018. Mr Bullock states that the respondent has cooperated with the appellants and made all reasonable attempts to have the matters progressed and set down as soon as possible. Delay, he contends and the appellants do not deny, cannot be sheeted home to the respondent.
Mr Bullock’s affidavit tells of the efforts made by the respondent to have the appeals set down expeditiously. He observes:
·By letter dated 29 September 2018 the former solicitors for the appellants were advised by Cowell Clarke that the draft case book index was due to be filed on 10 October 2017. Suggestion was also made of a means of reducing the content of the case book. The solicitors for the appellants replied indicating that it was the appellants’ intentions to proceed in the ordinary way;
·On 4 October 2017 the respondent filed an interlocutory application in this Court (FDN 3). The purpose of that application was to obtain references to challenged findings of fact in advance of summaries of argument being filed in addition to obtaining an order that any interlocutory applications relevant to the appeals and the appeals themselves be heard together. Subsequently a Judge of this Court ordered that the appeals be heard together.
·On 10 October 2017 the appellants’ former solicitors provided a draft case book index to the Registry and to Cowell Clarke. By email dated 25 October 2017 Cowell Clarke responded to the draft index and in the light of that response filed an amended version of the index with the Appeals Clerk for settling.
·On 23 November 2017 the Appeals Clerk returned to the parties the draft index “tracked changed” to highlight amendments that the Appeals Clerk considered appropriate. The Clerk indicated that the index would not be settled until a clean copy with the suggested changes was provided. The Clerk also indicated that if there was any dispute regarding the content of the index he should be advised and reasons in support of the dispute provided. By this time FEG were acting for the appellants and the Clerk’s email was sent to FEG accordingly.
·FEG did not respond to the Appeals Clerk.
·On 4 December 2017 FEG advised Cowell Clarke that they were in receipt of instructions to amend the Notices of Appeal and were in the process of seeking advice from counsel. In their response of 7 December 2017 Cowell Clarke made plain the respondent’s concern at the lack of progress in the prosecution of the appeals and the respondent’s desire to have the appeals heard in February 2018.
·On 11 December 2017 the appellants filed an interlocutory application (FDN 8) seeking a stay of the orders made on 31 August 2017. The application was not pursued on an urgent basis. In response, as mentioned above, the respondent filed an interlocutory application (FDN 10) seeking orders that the application be made specially returnable and that the appeals be dismissed, or, in the alternative that any amended Notice of Appeal be filed within three days and the appeals be set down for hearing in February 2018.
·On 14 December 2017 Cowell Clarke wrote to FEG again expressing concern at the delay in the prosecution of the appeals. Amongst other things the letter referred to the failure on the part of the appellants and their former solicitors to settle the case book index.
·The interlocutory applications (FDNs 8 & 10) were heard by a Judge of this Court on 22 December 2017. An interim stay order was made and a date was set for the substantive argument on the stay application to be heard. In addition an order was made requiring any amended notice of appeal to be filed and served by 29 January 2018. The Judge did not deal with the respondent’s application for the appeals to be dismissed, but given agreement was reached as to the orders to be made it does not appear to have been pressed.
·On 31 January 2018, two days after the amended notices of appeal were filed to which reference has already been made, Cowell Clarke wrote to FEG observing that the grounds of appeal had been expanded. In those circumstances, it was contended, there was no reason why the case book could not have been prepared early in December 2017.
·On 9 February 2018 Cowell Clarke wrote to FEG with a proposal intended to avoid the substantive hearing of the appellants’ application for the stay of the orders of 31 August 2017 (as amended) pending the outcome of the appeal conditioned on, amongst other things, the appellants expediting the appeal process, creating no further delay, and ensuring that the appeal be heard no later than the June sittings of the Full Court. As indicated above, on 14 February 2018 the Court made orders staying the orders of 31 August 2017 pending the outcome of the appeals.
·On 13 March 2018, after counsel had met to settle the index to the case book, Cowell Clarke forwarded by email a copy of that settled index to the Appeals Clerk. FEG were copied into that email. Cowell Clarke’s actions elicited no response from FEG.
·On 20 March 2018 the appeals lapsed.
·On 22 March 2018 the Appeals Clerk provided the parties with the settled case book index and some additional instructions for the preparation of the case book.
·By email dated 26 March 2018 Cowell Clarke advised FEG that the case books were to be filed and served within seven days of the index having been settled. Cowell Clarke also pointed out that in order that it provide the certificate required by rule 239(10) SCCSR it would need a copy of the case book before the seven days lapsed.

In the balance of his affidavit Mr Bullock refers to the exchanges between Cowell Clarke and FEG regarding the preparation of the case books culminating in the compilation of the third case book exhibited to Ms Young’s first affidavit. His affidavit alludes to problems with the first case book such as handwritten endorsements not forming part of the exhibits that appeared on many documents included. It does not appear that FEG attempted to obtain clean copies of the marked documents included in the first case book until 28 April 2018. Mr Bullock refers to the assistance provided by Cowell Clarke where requested in this regard.
Mr Bullock refers to his email of 11 April 2018 in which he advised FEG that the appeals had lapsed. He notes that he also advised that an application to reinstate the appeals needed to be made and that special reasons justifying reinstatement would need to be shown. He also pointed out that the case book was a week late and would not be ready for the next meeting between the Appeals Clerk and the Chief Justice at which the appeals might possibly have been listed for hearing in April.
Mr Bullock then outlines the problems with the first case book received by Cowell Clarke on 12 April 2018. He confirms that on 13 April 2018 he advised FEG of the deficiencies with the first case book. He also repeated that the appeals had lapsed and put FEG on notice that the respondent reserved his position in that regard.
The email exchange that occurred during the period 17 April 2018 – 24 April 2018 concerns the merit of the points taken regarding the adequacy and accuracy of the first case book, the suggestion that resort to the court file may be necessary, reasons for the delay (Ms Young’s principal, Mr Grace, being on leave, ill, and unaware of the handwritten notations on many of the documents in the first case book), and an assurance on FEG’s part that it was working assiduously to complete the case book. In and amongst these emails, on 17 April 2018, Cowell Clarke again referred to the appeals as having lapsed.
Mr Bullock confirms receipt of the second case book on 1 May 2018. He sets out the deficiencies with that case book. In the communications that followed between Cowell Clarke and FEG, FEG was again reminded in a letter of 2 May 2018 that the appeals had lapsed and that reinstatement would only occur if special reasons justifying such action could be shown. Cowell Clarke referred to the reasons provided to date for the delay in the production of the first case book as not amounting to special reasons.
In her affidavit in reply, sworn 1 June 2018, amongst other things, Ms Young clarifies:
·That the appellants first asked for their file held by their former solicitors to be sent to FEG on 14 November 2017;
·That senior counsel was retained by FEG on 24 November 2017;
·That FEG received instructions to apply to amend the Notices of Appeal on 4 December 2017;
·That until counsel’s advice regarding any amendment was known it would have been inappropriate to incur the cost associated with the preparation of the case books;
·That FEG disputed the contention that the appeals had lapsed, time running, in FEG’s opinion, from 14 February 2018 when permission was granted to file the second notice of appeal in 1117 of 2017 and the third notice of appeal in 1118 of 2018.
The final point made above was not argued on the present application. Rather, all accepted that the appeals lapsed on 20 March 2018.
It is not necessary to refer to Ms Young’s third affidavit sworn 4 June 2018[10] as it merely corrects a reference in her earlier affidavit sworn 1 June 2018.
[10] Referred to as her “Second” Affidavit when filed (FDN 23).
Does the requirement that there exist special reasons contained in rule 296(2) SCCR apply?
As mentioned the respondent contends that for the appellants to succeed on their application for the reinstatement of both appeals commenced on 19 September 2017 special reasons must be established. In this regard the respondent contends that rule 296(2) SCCR and in particular the second part of that rule applies to the present application. Rule 296 provides:
296—Setting down appellate proceedings for hearing
(1)   If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing within the time fixed by Supplementary Rules, another party may apply to the Court for permission to set the proceeding down for hearing or for an order dismissing the proceeding.
(2)   Unless an appellate proceeding is set down for hearing within 6 months after the proceeding is commenced or a longer time allowed by the Court, the proceeding is taken to have been discontinued and lapses. Despite the dismissal of an appellate proceeding under this rule, the Court may, for special reasons, reinstate the appellate proceeding.
(3)   If a proceeding lapses under subrule (2), all parties are to bear their own costs.
(4)   The power to allow a longer time under subrule (2) may be exercised before or after the period of 6 months has elapsed.
The appellants submitted that the second part of rule 296(2) does not apply in the present case because the appeals have not been dismissed. They concede that the juxtaposition of the second part of rule 296(2) to the first part would ordinarily suggest a relationship between the two, but submit that the words used by the drafter are to be regarded as deliberate and advised and that, as such, the second part of rule 296(2) picks up on, and applies to, the dismissal of an appellate proceeding under rule 296(1). In support of this submission the appellants refer to the principle that a word or term used in one place in a statute or in rules is to be given the same meaning if it appears in another place in the same statute or rules unless a contrary intent is indicated. In this regard the concepts of discontinuance and dismissal are different. Both are used within Chapter 13 SCCR consistent with them having different meanings. The appellants also point to the fact that the second part of rule 296(2) refers to that part as applying to “the dismissal of an appellate proceeding under this rule” as opposed to “under this subrule” thus indicating that the second part of rule 296(2) has an operation beyond the subrule. Accordingly, the appellants need not establish special reasons before this Court may reinstate their appeals.
The respondent contends that the juxtaposition of the first and second parts of rule 296(2) reflects the fact that they deal with the same subject. That subject is the dismissal of an appeal which, the respondent submits, includes a discontinuance that occurs by force of the first part of the rule. A discontinuance, the submission continues, is a constructive dismissal and thus falls within the class of outcome to which the obligation to establish special reasons applies. It would be an extraordinary piece of drafting, it was suggested, to include in the second part of rule 296(2) a qualification that did not apply to the first part of that rule, but did apply to rule 296(1).
A consideration of the text of rule 296(2) in the context of Chapter 13 SCCR and the related supplementary rules indicates:
i.Rule 296(1) confers on a party or parties to an appellate proceeding, other than the party having carriage of the appeal, the right to apply to the Court either for permission to set the proceeding down for hearing, or, for an order dismissing the proceeding. The right conferred is conditioned on the party having carriage of the appeal having failed to set down the appeal for hearing within the time prescribed by the supplementary rules. That time limit is contained in rule 240(6) SCCSR (i.e. the appellate proceeding to be set down within seven calendar days of the case book index being settled unless the Registrar, the Appeals Clerk or the Registrar’s delegate otherwise directs);
ii.Thus rule 296(1) SCCR provides for a consequence for the failure to set down an appellate proceeding within the time limit prescribed by rule 240(6) SCCSR contingent on the other party or parties to the appeal making an application. Put slightly differently, absent an application made by the party or parties not having carriage of the appellate proceeding for either of the forms of relief provided, the failure to set down the appeal for hearing within seven calendar days after the settling of the draft index to the case book has no immediate consequence.
iii.It is rule 296(2) SCCR that prescribes a consequence for the failure to set down an appeal. By force of rule 296(2) an appellate proceeding that has not been set down within six months after the proceeding was commenced or such longer time as the Court may have allowed, is taken to have been discontinued and lapses.
iv.The description of the consequence of failing to set down an appeal within six months of commencement as the proceeding being taken to have been discontinued and lapsed imports an assumption. By virtue of non-compliance with the rules the party having the carriage of the proceeding is taken to have decided that it does not wish to proceed to having the appeal judicially determined. The description of the outcome of the assumed decision accords with the description of the outcome where a decision is actually made not to proceed to having an appeal judicially determined by the filing of a notice of discontinuance under rule 287 SCCR. The consistency in the use of the concept of a discontinuance to describe a positive decision by the party having the carriage of the appeal not to proceed and an assumed decision made by the party having the carriage of the appeal not to proceed reflects the fact that in neither instance is the outcome the result of an exercise of judicial power. The position stands in stark contrast to an order of dismissal.
v.The first part of rule 296(2) SCCR deals with the position where an appeal has been commenced but not set down within the period fixed by the supplementary rules, has not been dismissed under rule 296(1) and has not been set down within the six months of commencement or such longer period as the Court has allowed. That is, the first part of rule 296(2) deals with the effect of inaction. By contrast the second part of rule 296(2) begins with the words “[d]espite the dismissal of an appellate proceeding”. So doing it purports to introduce an exception to an event that has occurred. That event is the dismissal of the proceeding. The ordinary meaning of the word dismissal is different to that of discontinuance. The former is defined in the Macquarie Dictionary as “the termination of a suit by the act of the plaintiff, as by notice in writing, or by neglect to take the proper adjournments to keep it pending”, and the latter as “the act of dismissing, the state of being dismissed, spoken or written order of discharge”.[11] Those definitions accord with my understanding of the different usage generally made of those concepts by the law.
[11] Macquarie Dictionary, 7th Ed, (2017).
Bearing in mind the content of rule 287 and rule 296(1) it would be very unlikely that where the second part of rule 296(2) speaks of dismissal the drafter should be understood as meaning discontinuance or including discontinuance. Admittedly the juxtaposition of the first and second parts of rule 296(2) SCCR would ordinarily suggest a relationship between those parts, however the dismissal to which the second part of rule 296(2) refers is a dismissal that occurs “under this rule” thereby sending the reader to wherever the rule allows for a dismissal to occur – rule 296(1) SCCR. Such dismissal is that which occurs on the application of a party other than the party having carriage of the appeal made after the appellate proceeding was not set down within the time fixed by rule 240(6) SCCSR. In short, I do not think the second part of rule 296(2) refers to the first part of that same rule. I consider the drafter must be taken to know the difference between a proceeding dismissed and one discontinued and to have deliberately chosen to limit the second part of rule 296(2) to proceedings dismissed on an application under rule 296(1) SCCR.
Some support for the differential treatment of a dismissal and a discontinuance is to be found in rule 296(3) SCCR. Rule 296(3) only applies to the first part of rule 296(2). Because the lapse of the appeal occurs by virtue of the operation of the rule and not as a result of the exercise of judicial power, the question of costs is also resolved by the rules. By contrast, as part of the exercise of judicial power on an application under rule 296(1), costs may be expected to be dealt with in the usual way.
Further support is to be found in rule 296(4) SCCR. That rule opens by referring to the first part of rule 296(2) as vesting a power to extend time, such power being exercisable before or after the period of six months has elapsed. That power is of no utility where an application has successfully been made under rule 296(1) for the dismissal of the appellate proceeding. If the appellate proceeding is dismissed the question is not one of an extension of time, but reinstatement.
Both counsel took me to the history of rule 296 commencing with rule 95.11 of the 1987 rules. That history is of only the most general assistance. For example, rule 95.11(3) of the 1987 rules provided for an appeal to lapse if not set down within the prescribed time limit unless time was extended prior to that period of time lapsing, or, if the time had lapsed, where in special circumstances, time was extended after the period prescribed had elapsed. Rule 95.11(3) had no application to rule 95.11(2), the then equivalent of current rule 296(1). Rule 95.11 did not provide for reinstatement where an appeal was dismissed on the application of a respondent under rule 95.11(2) unlike rule 296(2).
Rule 295 was the progenitor of rule 296 in the 2006 rules as first made. Rule 295(1) was no different to current rule 296(1). Rule 295(2) only contained the first part of current rule 296(2). Rule 295 contained no provision providing for an extension of time either before or after the time in which to set down an appeal for hearing had lapsed. Whether such application could be made was a matter of locating a power elsewhere in the rules assuming rule 295(2) did not implicitly invest power to extend time.
What was rule 295 became rule 296 with amendments to the 2006 Rules made in 2009. New rule 296 mirrored rule 295 as first made.
In 2014 amendments were made to rule 296. Those amendments added the second part of current rule 296(2) in addition to inserting rule 296(4).
The history of rule 296 does not assist in the resolution of the construction question that arises on the current application. Rule 95.11 provided no possibility of reinstatement after dismissal upon the application of a party or parties who did not have carriage of the matter. The current rule clearly differs in this regard. Whatever dismissal may include in rule 296(2) it cannot be understood on any construction as being confined to a discontinuance under rule 296(2) but exclusive of an order under rule 296(1).
In short, I find nothing in the history of rule 296 that permits a construction other than one that affords the concepts of discontinuance and dismissal their ordinary meaning, a meaning that is different and distinct.
In my view, because no application was made under rule 296(1) SCCR resulting in an order dismissing the appeals, the second part of rule 296(2) SCCR does not apply to the present application. Accordingly, I would answer the first question raised on this application in the negative.
If the answer to the first question is, “yes”, are there special reasons for the reinstatement of the appeals?
In view of my conclusion in relation to the first question no need arises to consider this question.
If the answer to the first question is, “no”, should the appeals be reinstated?
The application is, in effect, one for an extension of time in which to set the appeals down nunc pro tunc. The question is whether it is just to grant that extension. The starting point in answering this question is to observe that the appeals are appeals as of right instituted within time. Thus the application concerns the failure to do things prescribed by the rules in respect of appeals already lodged. The present application is then one made under the first part of rule 296(2) SCCR to extend time for doing acts in respect of appeals already lodged. In the circumstances the observations of Brennan CJ and McHugh J in Jackamarra v Krakouer are apposite:[12]
… In that class of case [an application for an extension of time to lodge an appeal], the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question – should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court’s business would be prejudiced by granting the application.
[footnotes mitted]
[12] Jackamarra v Krakouer (1998) 195 CLR 516 at [4].
Brennan CJ and McHugh J were of the opinion that on an application such as that now under consideration the merits of the appeal were not a relevant consideration “unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time”.[13] Brennan CJ and McHugh J added:[14]
One reason that an appellate court does not go into “much detail on the merits”in considering whether the time for an appeal should be extended is because ordinarily it only has “limited materials and argument”. Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess “the merits” in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised. No doubt there will be cases — this was obviously one — where instinctively the court feels that, given the apparent strength of the judgment under appeal, the arguments supporting the appeal will fail. In that case, however, an appellate court needs to remind itself “that one story is good until another is told”and that, if the court is inclined to act on the apparent strength of the judgment, the applicant for an extension of time should have a full opportunity to tell his or her story in rebuttal of the judgment. The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.
[13] Jackamarra v Krakouer (1998) 195 CLR 516 at [7].
[14] Jackamarra v Krakouer (1998) 195 CLR 516 at [9].
In the same case Gummow and Hayne JJ introduced the issue by, as they said, setting the arguments in their proper context:[15]
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. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. 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 happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with 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. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible.
It is with these considerations in mind that the rules of court prescribe times for the taking of certain steps in a proceeding. They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than ninety years ago as the “sporting theory of justice”. They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation, so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation.
[footnotes omitted]
[15] Jackamarra v Krakouer (1998) 195 CLR 516 at [29]-[30].

Their Honours then observed:[16]
[The appellant’s] appeal is as of right and was instituted within time but that right must be exercised subject to the limitations imposed by the rules. If exercising her right in accordance with those rules, she should not be denied the opportunity to present her appeal in the ordinary way except in a clear case. So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”. Each of the formulae mentioned by Barwick CJ in the passage we have quoted from General Steel Industries Inc intends to convey that meaning. But, of course, if formulae of the kind set out in General Steel Industries Inc are applied in the case of an appeal, it is important to recall that the context is different. The boundaries of the field for debate between the parties on appeal have been set at trial. Before a proceeding has been tried there may well be considerable uncertainty about what evidence will be given and how that will affect the final identification of issues to be decided. Those uncertainties should have been largely resolved at trial and the material and the issues for consideration on appeal will ordinarily be readily identifiable.
[16] Jackamarra v Krakouer (1998) 195 CLR 516 at [33]-[34].
In Hall v City of Burnside (No 8) Kourakis J, as he then was, referred to and quoted from the judgment of McHugh J and of Gummow and Hayne JJ in Brisbane South Regional Health Authority v Taylor,[17] a case concerning an application for an extension of time in which to institute proceedings, and said:[18]
Those passages establish that the relevant prejudice for the purposes of an application to extend time is not limited to the prejudice which is suffered in the period after the expiry of the limitation period. The rationale for that approach appears in the judgment of McHugh J in Taylor. Limitation periods reflect a legislative or administrative judgment on where the balance lies between an applicant’s right to pursue a remedy for an alleged wrong on the one hand, and a prospective respondent’s interests in both certainty and a fair hearing on the other. A discretion to extend the time in which a step in an action can be taken is in effect a power to alter that balance. It follows that, where a legislatively or administratively imposed time limit allows for a discretionary extension, it is material and relevant to have regard to the entirety of the prejudice that the respondent may suffer if the action is brought so that the fresh balance struck is a just resolution of the interests of both parties. The balance will necessarily be skewed in favour of the applicant if only the prejudice over and above that which the defendant would face if the action was brought within time was considered. However, the authorities do not demand that the weight that should be accorded to the prejudice suffered by the respondent should be the same whenever it was caused. Indeed, the passage from the judgment of McHugh J that I have reproduced above seems to me to suggest otherwise. The decision of the High Court in Jackamarra v Krakouer clearly establishes that the relative weight of the discretionary factors affecting the exercise of a discretion to extend time differs according to whether more time is sought to commence an action or to take a step in an existing action. The institution of an action immediately puts the respondent on notice of the extent of his or her contingent liability and alerts him or her to the need to obtain and preserve relevant evidence. A respondent can also approach the court before which he or she has been brought and seek orders to ensure the prompt prosecution of the action. If the action is not promptly prosecuted a respondent may apply to have it dismissed. There is yet a further difference. When the time for instituting an action has expired, a prospective respondent has an identifiable substantive right. Where no action has been brought the right is in the nature of an immunity from suit. Where a judgment has been given, the parties bound by it are protected, subject to any properly instituted appeal, from further disputation over the competing claims that have been conclusively settled by the curial adjudication. However, where a proceeding, whether it is a proceeding at first instance or an appellate proceeding, has been instituted, it is not meaningful to speak of a respondent’s right to have that action heard within a particular time. The time that will be taken to resolve the action will depend on many circumstances, including the procedures and resources of the court in which the action is brought. It might be said that the respondent has a procedural right to the expeditious prosecution of the matter in accordance with the rules of the court, but the right so described is a very different right to the substantive rights a prospective respondent enjoys before the commencement of the action. Moreover, as I have just observed, a respondent can enforce that procedural right by approaching the court for orders that the action be prosecuted diligently.
It follows that in this matter I accept that the prejudice faced by the respondents includes, at least, the prejudice that they have suffered and would continue to suffer from the time at which the appeal could reasonably have been set down. The relevant prejudice may even extend to the prejudice suffered from the time of the institution of the appeal. The period of two months allowed by the applicable practice direction can be accepted as the time that is reasonably required to set down an appeal. The appeal was filed on 21 January 2008. It is appropriate to proceed on the basis that it could have been set down by 20 March 2008.
[footnotes omitted]
[17] (1996) 186 CLR 541.
[18] [2008] SASC 318 at [74]-[75].
In the present case the right enjoyed by the respondent is the right to the expeditious prosecution of the appeals. As Kourakis J, as he then was, observed in the passage quoted above, that is a right of a different nature to that enjoyed where an appeal is not commenced within time.
Here the respondent does not point to any actual prejudice in the sense that he is now compromised in defending the appeal or any possible retrial by the delay that has occurred. No doubt he is occasioned great inconvenience and cost both personal and financial by the delay, but he remains in a position to defend the judgment and defend the actions if a retrial were to be ordered. Whilst I do not overlook that he was entitled to expect that the appellants would prosecute the appeals expeditiously it must be remembered that the respondent did not press for such outcome in pursuing his interlocutory application of 11 December 2017 (FDN 10). Rather, he acquiesced in orders including that amended notices of appeal be filed and served by 29 January 2018 no doubt knowing that in the light thereof the index to the case book would have to be revisited. It may well be that the amended Notice of Appeal did not require any significant amendment to the case books, as indeed Cowell Clarke contended in its letter of 31 January 2018, but until such time as counsel’s opinion was provided the appellants were not to know that this would be the case. The real point is, however, that in December 2017 the respondent embraced consent orders that necessarily meant the appeals would not be heard in February 2018. This no doubt reflected the fact that whilst he was inconvenienced he was not prejudiced. Time has since advanced and the appeals will not likely be heard until August or September. The inconvenience and personal and financial cost occasioned the respondent has continued. That is not to be dismissed lightly, but it remains the case that the passage of time has not prejudiced the respondent in defending the appeals or pursuing his rights in any possible retrial.
On 20 March 2018 the appeals lapsed under rule 296(1) SCCR. As at that point in time, delay may be said to have been the product of the appellants’ changing solicitors and the consequences of instructing fresh solicitors, the inability to obtain the appellants’ file from their former solicitors, the retention of senior counsel to advise on the appeal including on the question of whether the Notices of Appeal should be amended, and time and effort being devoted to the stay application and negotiating the arrangements regarding work in relation to the retaining wall in the interim. Nothing in the papers suggests that the respondent could have had any doubt about the appellants’ intention to pursue the appeals and to do so vigorously.
On 22 March 2018 the Appeals Clerk forwarded the settled case book index to the parties. That is, even though by operation of rule 296(2) SCCR the appeals had lapsed, the Court continued to act as if the appeals would be prosecuted to a conclusion. That is because the conduct of the parties suggested the same. In the circumstances it is likely that had an extension of time been sought under rule 240(6) SCCSR it would have been granted. Such an extension should have been sought by FEG.
It may fairly be said that FEG did not act with all due expedition in the preparation of the case book between 13 March and 26 March 2018. In fact, it is reasonable to state that FEG should have commenced assembling the content of the case book long before 13 March 2018, at least so far as it could subject to obtaining counsel’s opinion and related instructions and the settling of the index and without incurring unnecessary cost (and on the assumption that there was no suggestion that the appeals would be withdrawn, which I understand to be the case). I am not in a position, however, to form any concluded view as to the extent that this might have been achieved. Nor am I in a position to determine whether, had FEG commenced the task of compiling the content of the case book at an earlier point, the difficulties later encountered would have been realised sooner.
I accept that from 26 March 2018 until the filing in this Court of the third case book on 17 May 2018 FEG applied itself to the construction of the case book. No doubt it could have done better and acted more quickly. That is an easy criticism to make in hindsight. More importantly it cannot be concluded that any delay during this time was deliberate in the sense of a calculated attempt to delay the hearing of the appeals for the benefit of the client. An allegation to this effect is very serious and any finding of the same would need to be supported by clear and cogent evidence.
In Victa Limited v Johnson Bray CJ remarked in relation to a question concerning the extension of time that “[a]ction, even though misconceived or ineffective, is often regarded more indulgently than complete inaction”.[19] In the present case it cannot be said that the appellants or FEG were inactive since commencing the appeals. It cannot be said that the appeals were stale in the sense that the appellants have done nothing and the respondent has consequently been lulled into inactivity believing that the appeals will not be pursued.
[19] [1975] 10 SASR 496 at 502.
I am in no position to assess the adequacy of either the first or second case book. Clearly in preparing the second and third case books FEG accepted that the preceding versions were inadequate. It appears that there were errors involved in the preparation of the first and second case books. There also appears to have been a failure to understand the size of the task and the expectations of the Court. But most importantly, the preparation of three versions of the case book and the engagement with Cowell Clarke as to the content of the same demonstrates a commitment to the process on the part of FEG and the appellants. Without the appellants’ files being provided by their former solicitors, FEG were always going to be in a position where they would be hampered in the preparation of the case books.
In Riv-Oland Marble Co (Vic) Pty Ltd v Settef SPA the High Court said in considering an application for renewal of an order granting special leave to appeal:[20]
It is the duty of a solicitor who undertakes to conduct an appeal to this Court to be or to become familiar with the applicable rules which apply to the proceedings and to observe them. The rules are designed to promote efficiency in litigation and to avoid the useless incurring of costs.
[20] (1989) 63 ALJR 519 (Brennan, Dawson and McHugh JJ).
The same may be said in relation to solicitors instructed to institute appeals in this Court. FEG does not appear to have paid close attention to the rules. No explanation has been provided as to why no application for the extension of time in which to set the appeals down was not made before the appeals lapsed.
In the end, having regard to the action taken by the appellants and their solicitors since commencing the appeals, including the time and resources devoted to the related stay application and negotiations regarding interim arrangements relating to the retaining wall, to the explanation of the delay, and to the prejudice to the respondent and to the administration of court business, I consider it appropriate to grant the appellants the indulgence they seek and that in all the circumstances it would be inappropriate to deny them their right to appeal. I add, I have had regard to the fact that the extension of time sought will be in the region of some four – five months, but case book three being ready no further delay should be encountered in setting the appeals down and the respondent has now been in the position to prepare for the appeal for some time. Lastly, I have also had regard to the fact that it was not suggested that the grounds of appeal are not arguable or that they are without merit.
Conclusion and orders
I grant the application. I will hear the parties as to the appropriate form of the order extending time in which to set the appeal down for hearing.
Before concluding I add; neither party made any submission on the possible application of s 48 of the Limitation of Actions Act 1936 (SA) and, if the second part of rule 296 (2) SCR did apply contrary to my conclusion, the seeming conflict between the requirement of special reasons under that rule with s 48(1) and the power to extend time on such terms as the justice of the case may require. Irrespective of whether the second part of rule 296(2) is within the rule making power, in Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson the Full Court accepted that an application for an extension of time could be made under section 48(1) in relation to a lapsed appeal notwithstanding rule 95.11 and without having to meet the more onerous requirements of that rule.[21] Although I do not decide the question, it would appear that the application of the power contained in s 48(1) would involve no different considerations than in the application of the implicit power to extend time contained in rule 296(2).
[21] (1995) 184 LSJS 147.