Ramstrom v Baldino (No 2)

Case [2014] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

RAMSTROM v BALDINO (No 2)

[2014] SASC 71

Reasons for Decision of The Honourable Justice Nicholson

10 June 2014

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - OTHER MATTERS

The appellant sought an order for an extension of time of two years within which to set down for hearing a filed appeal from a decision of the Equal Opportunity Tribunal. The appeal is presently stayed pending payment by the appellant of $25,000 into Court by way of security for the respondent’s costs of appeal. The extension was sought on the basis that the appellant will not have the financial capacity to satisfy the security for costs order for at least another two years, by which time the appeal will have lapsed pursuant to Supreme Court Rule 296(2).

The respondent sought, inter alia, an order that the appeal be dismissed.

Held:

1.  Insofar as is necessary, the stay is varied to permit the appellant to bring her application for an extension of time within which to set down the appeal.

2.  The appellant's application is refused.

3.  The respondent’s application is refused.

4.  The parties are to be heard on the question of costs.

Supreme Court Rules 2006 Rule 295, Rule 296, referred to.
Ramstrom v Baldino [2013] SAEOT 14; Ramstrom v Baldino [2014] SASC 29; Slinger v Southern White Pty Ltd (No 2) [2004] SASC 366; Jackamarra v Krakouer (1998) 195 CLR 516; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Hall v City of Burnside (No 8) (2008) 259 LSJS 45, [2008] SASC 318; Fox v Percy 2003) 214 CLR 118; Key v Police [2010] SASC 192; Key v Police [2011] SASC 66; Farnell v Penhalluriack (as executor of the estate of Malcolm Hilary Chipperton deceased) [2010] VSCA 305; Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377; Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18; Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271; Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180, considered.

RAMSTROM v BALDINO (No 2)
[2014] SASC 71

Civil

NICHOLSON J.       

Introduction

  1. I have before me an interlocutory application filed, on 8 April 2014, on behalf of the respondent to the appeal in this matter, seeking orders, inter alia, that the appeal be dismissed, that the respondent have its costs of the appeal and that the respondent have its costs, on an indemnity basis, of the application.  The application is endorsed as having been made pursuant to Rule 296(1) of the Supreme Court Rules and the inherent jurisdiction of the…

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AGLC
Ramstrom v Baldino (No 2) [2014] SASC 71
Case
[2014] SASC 71
Decision Date

CaseChat Overview and Summary

In the matter of Ramstrom v Baldino (No 2), the appellant sought an extension of time to set down the appeal, while the respondent moved to dismiss the appeal for want of prosecution. The appeal concerned a security for costs order previously granted in the primary proceedings. The court was required to determine whether the appellant's financial inability to meet the security for costs order justified an extension of time to set down the appeal and whether the delay in setting down the appeal constituted a want of prosecution warranting dismissal.

The court considered the appellant's affidavits and evidence regarding her financial situation and attempts to refinance her mortgage to obtain funds. The appellant argued that she would not have the financial capacity to satisfy the security for costs order for at least two more years, by which time the appeal would have lapsed. The court acknowledged the appellant's efforts to secure a loan but found that she had not demonstrated a reasonable prospect of meeting the security for costs order in the near future. The court also noted that the appellant had not provided sufficient information about the extent to which her legal advisers might moderate their fee requirements if she chose to prioritise meeting the security for costs order. Ultimately, the court found that the appellant's financial situation did not justify an extension of time to set down the appeal. Furthermore, the court found that the appellant's delay in setting down the appeal amounted to a want of prosecution warranting dismissal.

The court dismissed the appeal for want of prosecution and denied the appellant's application for an extension of time to set down the appeal. The court held that the appellant had not demonstrated a reasonable prospect of meeting the security for costs order in the near future, and her financial situation did not justify an extension of time. The court also found that the delay in setting down the appeal amounted to a want of prosecution warranting dismissal. The respondent's application to dismiss the appeal for want of prosecution was therefore allowed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties have agreed that the outcome of the respondent’s application to dismiss the appeal for want of prosecution is necessarily contingent upon the outcome of the appellant’s application for an extension of time to set down the appeal. A granting of the appellant’s application would necessarily entail a refusal of the respondent’s application for dismissal. The converse does not apply. In other words, it remains open to the Court to refuse the appellant’s application and to allow the respondent’s application to dismiss the appeal or to refuse both applications in which case the appeal would remain subject to the requirements of Rule 296(2). I therefore turn first to consider the appellant’s application for an extension of timeEvidence relied on The following affidavits were read and received in the parties’ respective cases with respect to the two applications now before the Court; the first six in support of the appellant’s case and the latter four in support of the respondent’s case:(i)first affidavit of Linda Jane Appelbee, solicitor, sworn 21 February 2014;(ii)second affidavit of Linda Jane Appelbee, solicitor, sworn 16 April 2014;(iii)affidavit of Anthony Rossi, solicitor, sworn 1 May 2014;(iv)first affidavit of Rebecca Ramstrom sworn 21 February 2014;(v)second affidavit of Rebecca Ramstrom sworn 15 April 2014; and(vi)third affidavit of Rebecca Ramstrom sworn 27 May 2014.(vii)first affidavit of Andrew James Culshaw, solicitor, sworn 31 January 2014;(viii)fourth affidavit of Andrew James Culshaw, solicitor, sworn 8 April 2014;(ix)affidavit of Joseph Marcus Baldino sworn 1 May 2014;(x)fifth affidavit of Andrew James Culshaw, solicitor, sworn 7 May 2014;The basis of the appellant’s application The basis of the appellant’s application is that she does not expect to have the financial capacity to satisfy the security for costs order for at least another two years, by which time the appeal will have lapsed unless an extension were to be granted. In essence, she is asking for two years in which to save the money. The only substantial asset that the appellant would appear to have is the equity of redemption held jointly with her husband in the matrimonial home. Sometime prior to the earlier hearing of the respondent’s security for costs application, the appellant commenced a process aimed at refinancing the mortgage on that property so as to allow her to borrow further money. She and her husband were able to secure a loan of $325,000 together with a credit card facility limited to a further $20,000. After repayment of the existing home loan and bank fees the appellant and her husband were left with a balance of $81,689.28 in total (that is, including the credit card facility). The refinancing arrangements settled on 11 March 2014 at which time the appellant obtained access to the funds just identified. This was four days or so after I delivered judgment on the security for costs application. In that judgment I made the following observations.[4]This lack of detail has some significance in the context of the second matter not made clear in the evidence. There is no evidence from the complainant or her legal advisers as to the extent to which the requirements of her legal advisers to receive a down payment against their fees might be moderated if the circumstances were such that a security for costs order, in the amount claimed by the respondent or something less, were to be made. In these circumstances, I am not persuaded that the complainant, necessarily, would not have the capacity to make a security for costs payment. She appears to have some capacity to borrow. It is conceivable that if the complainant chose to prefer to meet an order for security for costs rather than discharge her obligations, in part, to pay her own legal advisers, those legal advisers might still continue to act on the appeal. However, even if they were to cease to act, this would not necessarily prevent the appeal from proceeding with the complainant as litigant in person. This matter is relevant to the question of “stultification” of the appeal dealt with further below. [4] Ramstrom v Baldino [2014] SASC 29 at [13]-[14].

Decision

Reasons for decision

NICHOLSON J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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