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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Raedel & Raedel v Shahin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] SASC 95
Decision Date: 10 July 2018

CaseChat Overview and Summary

The appellants, Raedel & Raedel, sought to reinstate two lapsed appeals, SCCIV-1117 of 2017 and SCCIV-1118 of 2017, which had fallen into disuse under rule 296(2) of the Supreme Court Civil Rules 2006. A judge of the Court had already ordered that these appeals be heard together. The primary legal issue before the Court was whether the appellants should be granted an extension of time to reinstate the lapsed appeals and, if so, what the terms of such an extension should be. This involved a consideration of the appellants' actions since initiating the appeals, the explanation for the delay, any potential prejudice to the respondent, and the broader implications for the administration of court business.

The Court found that the appellants' actions and the explanation provided for the delay were sufficient to warrant an extension of time. The Court also noted that the extension sought was reasonable and would not cause significant delay in the administration of justice, as the respondent had already been in a position to prepare for the appeal for some time. The Court further observed that no suggestion was made that the grounds of appeal were not arguable or without merit. The Court concluded that granting the application for an extension of time would be appropriate in all the circumstances, and that it would be inappropriate to deny the appellants their right to appeal. The Court also briefly considered the possible application of section 48 of the Limitation of Actions Act 1936 (SA) and its compatibility with the relevant rule, though it did not make a definitive ruling on this point.

The Court granted the application to reinstate the lapsed appeals. The parties were to be heard regarding the appropriate form of the order extending the time to set the appeals down for hearing. The Court did not make a definitive ruling on the potential application of section 48 of the Limitation of Actions Act 1936 (SA), but noted that it would appear to involve no different considerations than the power to extend time contained in rule 296(2).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.