Ramstrom v Baldino (No 2) - [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

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 Court. I also have before me an interlocutory application filed, on 16 April 2014, on behalf of the appellant seeking an order that the appellant be granted an extension of time within which to set the appeal proceeding down for hearing. The period of the extension sought is two years. This application is endorsed as having been made pursuant to Rule 295(1)(a) of the Supreme Court Rules.
The appellant brought proceedings in the Equal Opportunity Tribunal against the respondent and failed.[1] A notice of appeal was filed in this Court on 24 January 2014. On 7 March 2014, I made an order staying further prosecution of the appeal pending payment by the appellant into Court of $25,000 by way of security for the respondent’s costs of appeal.[2]
[1] Ramstrom v Baldino [2013] SAEOT 14.
[2] [2014] SASC 29.
Supreme Court Rule 296 provides as follows.
(1)If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing within the time fixed by practice direction, 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 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.
(3)If a proceeding lapses under sub-rule (2), all parties are to bear their own costs.
Practice Direction 6.19 provides (in part):
An appellate proceeding to be heard by the Full Court is to be set down by the appellant or the party having carriage of the proceeding within two months of the commencement of the proceeding… .
Supreme Court Rule 295(1)(a) empowers the Court to “extend the time for commencing an appeal or … taking any step in the appeal”.
The appeal has not yet been set down for hearing. Given that the notice of appeal was filed on 24 January 2014, the respondent was entitled to make his application for dismissal at any time after 23 March 2014. The respondent has brought his application on the asserted basis that the appellant has no prospect of being able to meet the order for security for costs and thereby discharge the stay at any time before the appeal would automatically lapse pursuant to Rule 296(2).
The appellant has indicated that she has no prospects of meeting the security for costs order within the six month period as prescribed by Rule 296(2). As such, the making of an application to extend the time for the setting down of the appeal was highly likely, perhaps inevitable, in any event. Nevertheless, the six month period provided for in Rule 296(2) does not expire until 23 July 2014 and it would seem that the respondent’s application for dismissal has prompted, by way of response, an earlier than otherwise might have been expected filing of the appellant’s application for an extension. I observe that there is authority to the effect that the six month period, after which an appeal will lapse in accordance with Rule 296(2) is to be measured to the date of any order for extension and not to the date of any application for an order for extension.[3]
[3] Slinger v Southern White Pty Ltd (No 2) [2004] SASC 366 (Besanko J).
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 time
Evidence 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].
Against this background, the appellant elected, on 19 March 2014, to pay $8,032.05 by way of fees due to an expert medical witness who assisted at the trial and $50,000 into her solicitor’s trust account in part payment of trial legal costs and disbursements. Of that $50,000, the appellant’s solicitors disbursed $35,000 by way of part payment of counsel fees, $14,540 by way of part payment of the solicitors’ fees and $460 for video conferencing fees. I will assume, for the purposes of this application, that the appellant was contractually obliged to meet the charges incurred with respect to the conduct of the trial by her solicitors, her counsel and the medical practitioner concerned. Further, I accept that the amounts paid to counsel and the solicitors represented only a proportion of fees due and, at least in the case of the solicitors, a very small proportion. Nevertheless, these payments were made at a time after I had made the order for security for costs. Given the otherwise impecunious circumstances of the appellant, the making of these payments necessarily rendered her incapable of meeting the order for security for costs at that time.
According to the appellant’s second affidavit, after payment of these trial disbursements from the balance of $81,689.28 obtained through the refinancing exercise, the appellant and her husband were left with the sum of $3,657.23 together with the credit card facility of $20,000 “which my husband and I are using to subsist on”. The $3,657.23 has been used, essentially, to pay further amounts of interest due and other bank charges.
The appellant’s only source of income (apart from anything her husband earns) is her WorkCover income maintenance payments. Nevertheless, the appellant does not in any of her affidavits state what her income is or provide a detailed statement of her weekly expenses or any information as to her husband’s income and financial commitments. I accept that the appellant’s husband has no legal obligation to assist the appellant in funding this litigation. However, it is to be inferred from the affidavit evidence, and as would be expected, that the financial circumstances of the appellant and her husband are interwoven. Any capacity the appellant might have to acquire sufficient funds to meet the security for costs order will, in practical terms, be dependent on the co-operation of her husband and the extent to which he is able to shoulder the financial burden involved in conducting their life as a couple.
In her second affidavit, sworn 15 April 2014, the appellant has stated:
23.Due to my current financial situation, I will not be in a position to pay the ordered $25,000 security for costs within the six month period allowed by Supreme Court Rule 296(2).
24.I wish to be afforded the opportunity to attempt to save the money required for the security for costs to enable me the opportunity to prosecute the appeal. Based on our current income, my husband and I can only save $200 per week ($10,400 per year). We are unable to sustain our living expenses if we exceed this amount. Our quarterly bills total approximately $2,800 per quarter. I ask for two years to enable us to save $20,800 and then pay the balance of security amount from the available line of credit.
In her third affidavit, sworn 27 May 2014, the appellant provided further information concerning her financial circumstances and her capacity to save $200 per week.
6.In my Second Affidavit I have referred to the obtaining of a loan and a restructure of the existing loan that was secured by way of a mortgage. The overall effect is that the monthly repayments are similar to the monthly repayments prior to taking out the further loan.
7.When my husband and I addressed the saving of $200.00 per week referred to in my Second Affidavit we had regard to the following:
7.1    Cancelling Foxtel which costs approximately $200.00 per month.
7.2    Reducing the internet download maximum which results in a reduction in fee from $100.00 to $40.00 per month.
7.3    Substantial reduction in the amount that is spent on cigarettes and alcohol. We currently spend between $120.00-$140.00 per week on alcohol and my husband has been a heavy smoker and has spent $170.00 and sometimes more per week on cigarettes. My husband has agreed, in order to save for the purpose of the order for security for costs, to dramatically reduce his cigarette and alcohol consumption.
7.4    I have identified a significant saving in the order of $20.00 per week from our current use of petrol in relation to our two motor vehicles which is approximately $50.00-$60.00 per week.
7.5    There are other items of spending where we can save but I cannot be specific in relation to matters such as the amount that we spend on our clothing and generally entertainment.
According to my understanding of the appellant’s evidence and the oral submissions given by counsel, the appellant still has access to the $20,000 credit card facility. However, the appellant is not prepared to use the $20,000 or part of it towards meeting the security for costs order at this time. The appellant and her husband’s financial circumstances are such that they need to retain this facility because it is the only cushion they have in the event that unexpected debts were to arise or, for example, the onset of illness were to compromise the reliability of their present income in the future. Nevertheless, and notwithstanding the existence of the credit card facility, the affidavit evidence concerning the financial resources available to the appellant does suggest that the capacity of the appellant and her husband to consistently save $200 every week for two years must be regarded with quite some circumspection.
The principles to be applied where an extension of time within which to set down an appeal is sought
The discretion to extend time for the setting down of an appeal conferred on the Court pursuant to Rule 296(2) is unfettered, although it must be exercised judicially. I agree, with respect, with the following observation by Kirby J in Jackamarra v Krakouer.[5]
The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances.
The authorities in this area suggest that there are at least three and possibly four factors that, ordinarily, will be taken into account when exercising the discretion to extend time. They are:[6]
(i)the length of the extension sought;
(ii)the reason for the extension sought;
(iii)the prejudice that would be occasioned to the respondent if the extension was granted; and
(iv)whether there is an arguable case on appeal.
[5] (1998) 195 CLR 516 at [66] (footnotes omitted).
[6] See generally and for example, Jackamarra v Krakouer (1998) 195 CLR 516; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; and Hall v City of Burnside (No 8) (2008) 259 LSJS 45, [2008] SASC 318.
However, there is some conflict in the authorities as to the weight, if any, that should be put on this fourth factor. In Jackamarra v Krakouer Brennan CJ and McHugh J in their joint judgment, expressed the view that once an appeal had been lodged its merits were not a relevant consideration in an application for an extension of time for taking a step in prosecuting that appeal, unless the Court could be satisfied that the appeal was so devoid of merit that it would be futile to extend time.[7]
[7] At [7].
Their Honours (with whom Kirby J agreed as to the result) allowed the appeal before them and granted an extension of time for setting the appeal down for hearing. Gummow and Hayne JJ dissented. Their Honours focused on the question argued in the Court below as to whether or not the appeal in question was arguable. Their Honours were satisfied that the finding in the Court below that the appeal had no prospects of success and was not arguable should not be disturbed. On this basis their Honours would have dismissed the appeal. Gummow and Hayne JJ, in their joint judgment, did not address other potentially relevant factors, nor did they enter upon the debate as to whether, on the assumption that an appeal is arguable, its merits would remain to be considered when exercising the discretion of whether or not to extend time.
In my reasons for judgment when ordering security for costs, I did not make a finding that the appeal, in this case, was unarguable. I did make a number of observations to the effect that there were significant difficulties in the way of the appellant succeeding with her appeal.[8] I concluded that section of my reasons in the following terms.[9]
In the present case, the nature and strength of the findings made by the Tribunal, in rejecting the credibility and reliability of the complainant, are such that this orthodox or ordinary position [being that identified in Fox v Percy[10]] will need to be addressed and overcome by her before any appeal will succeed. For this reason, I accept the respondent’s submission to the effect that the complainant’s prospects of succeeding on appeal must be viewed with great caution.
In considering whether or not to grant an extension of time in this matter, I propose to adopt the position propounded by Brennan CJ and McHugh J in Jackamarra. I place no weight on the perceived difficulties (according to the limited analysis I undertook on the earlier occasion) confronting the appellant. However, the converse also applies; there is nothing about the merits of this appeal that adds strength to the appellant’s case for an extension of time.
[8] Ramstrom v Baldino [2014] SASC 29 at [15]-[24].
[9] At [24].
[10] (2003) 214 CLR 118, particularly, at [23]-[31] in the judgment of Gleeson CJ, Gummow and Kirby JJ.

Whilst the three remaining factors set out above ordinarily will be of most importance, other matters, given the particular facts of a case, may also be relevant. Kirby J in Jackamarra suggests a number.[11] However, in my view, this matter can be readily decided on the basis of the three primary factors: length of delay, reason for the delay and the extent of prejudice to the respondent. Before addressing these matters it is helpful to provide the broader context, as identified by Gummow and Hayne JJ in Jackamarra.[12]
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.
[11] At [66].
[12] At [29].
Resolution of the appellant’s application
An extension of two years is a very long one. In my view the burden of persuasion on an appellant seeking a delay of this magnitude is a heavy one. There are a number of reasons why such a lengthy delay counts strongly against the appellant. They include the general considerations canvassed in the passage from the reasons of Gummow and Hayne JJ in Jackamarra set out immediately above. However, there are two matters of particular significance in the present case.
First, the trial was lengthy and involved the hearing of a substantial amount of oral evidence from a number of witnesses including the two protagonists. It was heard over ten days or so and resulted in a judgment in the Tribunal extending over 71 pages. Much of the Tribunal’s judgment concerned an exploration of the evidence given by the parties and findings of fact based on credibility and reliability of the various witnesses, including the appellant. As I noted in my earlier judgment in this matter, the Tribunal rejected the evidence of the appellant and preferred that of the respondent on critical issues of fact. Further, the Tribunal made strong findings when rejecting the appellant’s evidence both as to her credibility and her reliability.[13]
[13] Ramstrom v Baldino [2014] SASC 29 at [16]-[17].
The task confronting both an appeal court and the respondent should the appeal proceed to hearing will be a very substantial one. The first ground in the notice of appeal is in the following terms.
The Equal Opportunity Tribunal has erred in:
1.1the approach and findings made in relation to the Appellant’s evidence and in failing to consider and address all relevant evidence and, especially the evidence of the Respondent.
The task on appeal would involve a review of all of the evidence in what was a substantial trial. The inherent difficulty in preparing for and responding to an appeal of this nature and the costs likely to be incurred with respect to such a task, would be significantly exacerbated if there were to be a two year delay before the respondent could start his preparations for the appeal.
A second fundamental concern with respect to a delay of this order arises from the possibility, if the appellant were to succeed, of a retrial being ordered. The case is one that quintessentially depends on findings of credit. The events the subject of the trial took place in 2008 and following. If there were to be a retrial it is difficult to see it taking place before sometime in 2017.[14] Any significant delay in bringing this appeal to hearing would risk seriously compromising the integrity of any retrial.
[14] The appellant’s application is for an extension of time of two years from the date when the appeal would lapse in accordance with Rule 296(2), that is, late July 2014. If granted, the stay presently in place would not be lifted until late July 2016. The appeal would then need to be set down, heard and a judgment delivered. In the event that a retrial were to be ordered, steps would need to be taken for that retrial to be prepared and listed. As a consequence, it is unlikely that a retrial would be heard before sometime in 2017.
In a sense, the two considerations just outlined, whilst bearing on the integrity of the Court’s processes, also fall to be considered as aspects of prejudice that would be suffered by the respondent in the event that the appellant’s application were to be granted. I will come back to the question of prejudice shortly.
I turn to consider the reason for the delay. The reason for the delay is that the appellant wishes to be given time to save the $25,000 required to satisfy the security for costs order. An immediate concern here is that there is a real risk that the appellant’s efforts might be rendered futile. If the appellant’s financial circumstances are as tight as she has deposed to in the affidavit evidence, the task of consistently saving $200 a week for a period of two years would appear to be a very difficult one. In addition, the appellant will be dependant, to a significant degree, on the continuing assistance from her husband in the manner set out in the affidavit evidence and summarised above. I cannot be confident, and notwithstanding the appellant’s good intentions, that she will necessarily succeed in the task she has set herself and her husband.
The factor which I find most compelling and upon which I place most weight is the likely prejudice to the respondent should the appellant’s application be granted. I have already indicated that the respondent will suffer prejudice to his capacity to prepare for and prosecute his defence to the appeal should it not be listed till the second half of 2016 and that the respondent is likely to suffer prejudice to his capacity to prosecute a defence to the appellant’s claim should any retrial take place in or about 2017.
In addition, the claims brought against the respondent are, of their nature, serious and distressing. This would be so no matter against whom the complaints were brought. However, this issue is of particular concern where, as in this case, the respondent is a retired magistrate and a person who held a quite visible public office for many years. The respondent succeeded in the Equal Opportunity Tribunal in rebutting the claims brought against him and is at the moment holding quite strong findings in his favour both as to his credit and as to his being innocent of the complaints. There would be an unfairness to simply allowing this position to be held in abeyance for another more than two years. The stress and anxiety that any litigant in this position would likely suffer whilst waiting such a long time for the appeal process to be resolved should not be understated.
Furthermore, the respondent in his affidavit has indicated a desire to re-enter public life in some form, perhaps by way of returning to practice as a legal practitioner or offering his services as a consultant or as an auxiliary magistrate. The respondent retired at the age of 65 (as required under the legislation then in force) and is now 67 years of age. He remains eligible for appointment as an auxiliary magistrate. There is correspondence, dated 29 May 2012,[15] to the effect that standing in the way of any such appointment at that time was the fact that the proceedings before the Equal Opportunity Tribunal were ongoing. There is no evidence before the Court as to whether or not that position might have changed since that date and, in particular, since the handing down of the decision by the Equal Opportunity Tribunal. Nevertheless, I infer from the correspondence and from the practicalities of the matter, that whilst the prospect that an appeal might be allowed and judgment either entered in favour of the appellant or a retrial ordered remain extant, such is likely to remain an impediment to the respondent being appointed as an auxiliary magistrate. Having said that, I recognise that there is no evidence before the Court bearing on whether or not any such application would, in any event, succeed in the absence of that impediment.
[15] See exhibit JMB1 to the affidavit of the respondent sworn 1 May 2014.
The respondent is keen to take up such work opportunities as may be available to him in order to be able to recover ground, financially, given the significant amount of legal costs he incurred in defending the appellant’s claims at trial. The respondent has incurred costs to this point of approximately $270,000. However, for the reasons indicated in my earlier judgment, and notwithstanding having been vindicated by the Tribunal, it is unlikely that he will recover any of those costs from the appellant.
I accept that the respondent has, if not a need, certainly a strong desire to return to paid employment if that were open to him. I also accept that, leaving aside the possibility of being appointed as an auxiliary magistrate, there is nothing now to stop the respondent from taking up such paid employment opportunities as might be available to him or entering into private practice on his own account. Nevertheless, it is likely that any such opportunities would be limited to some, unascertainable, degree in the event that there were not to be an early resolution of the appeal.
In short, and particularly given the nature of the complaints brought against the respondent and the age of the respondent which would suggest that he has relatively few years available in which he might undertake gainful employment, certainty becomes a very important consideration for the respondent. The respondent is entitled to know, and to know relatively quickly subject to the constraints of the ordinary case flow management process governing appeals, where he stands.
The respondent succeeded with an application for security for costs on the basis, in part, that the Court could not be satisfied that the appellant would be in a position to pay the respondent’s costs in the event that the appeal were to be dismissed. As such, there is a perversity to the notion that the respondent should now face the prospect of a two year delay before the appeal might be set down so as to enable the appellant to save the amount needed to comply with the security for costs order.
Counsel for the appellant, both in a written outline and orally, made submissions dealing with a number of the matters dealt with to this point. Those submissions included that the appeal was arguable, that the appellant should not be blamed for being unable to meet the security for costs order and that it was not reasonable to expect the appellant to pay the security for costs amount rather than make a contribution to her lawyer’s fees in order to secure further representation on the appeal. In this respect, the Court was advised that the appellant’s solicitors were prepared to continue to act upon the appeal, having been paid the contribution towards solicitor and counsel fees that I have earlier identified. The submission was put that the appeal was by its nature too complex and too difficult for the appellant to conduct it on her own. And that this was not a reasonable expectation. It was also submitted that the respondent’s decision not to undertake employment or return to private practice until the conclusion of the appeal represented a personal decision and did not form a proper basis for refusing the appellant’s application.
In short, the appellant submitted that matters of prejudice, as asserted in the affidavit evidence of the respondent, should carry little weight in the circumstances of this case and that significant weight should be accorded to the competing consideration that the appellant had an arguable appeal and that the Court should be slow to deprive her of her right to prosecute it. The appellant also submitted that an extension of time for as long as two years was not unheard of. Counsel cited two cases where extensions of time within which to file an appeal against conviction in the Magistrates Court had been granted, one for in the order of three years and the other for in the order of ten years.[16] I accept that the fact that the extension of time is for two years is not, of itself, a disentitling factor. Every case must be decided on its own facts. However, the two authorities cited in this context are of no direct assistance; they each arose in very different circumstances and gave rise to a quite different concatenation of considerations.
[16] Key v Police [2010] SASC 192 and Key v Police [2011] SASC 66.
In my view, the factors counting against allowing the extension sought significantly outweigh those in favour. I am satisfied that it would not be a proper exercise of the discretion to grant the appellant’s application for an extension of time within which to set the appeal down for two years from the date when the appeal, ordinarily, would lapse pursuant to Rule 296(2). The appellant’s application is refused.
The respondent’s application
I turn to consider the respondent’s application that the appeal be dismissed.
The respondent’s application is based on the fact that the appellant has not been able to have the appeal set down within the time period provided for in Practice Direction 6.19 (within two months of the commencement of the proceeding) and that the appellant has indicated that she will not be able to comply with the security for costs order within the period for setting the appeal down as required by Rule 296(2). Where an application is brought for dismissal on the basis that an order for security for costs has not been complied with the relevant factors to be taken into consideration have been described as:
(i)the period that has elapsed since security was ordered;
(ii)the fact that the appellant has been on notice of the application for dismissal;
(iii)the seeming inability of the appellant to further fund the appeal;
(iv)the prejudice to the respondent; and
(v)the position of the Court.[17]
[17] Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377; Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18 at [24] (Einstein J) and [2002] NSWCA 271 (Court of Appeal).
In Farnell v Penhalluriack (as executor of the estate of Malcolm Hilary Chipperton deceased)[18] Mandie JA (with whom Harper JA agreed) said this.
The New South Wales Court of Appeal in Porter also adopted what had been said about the above listed matters by Einstein J in Idoport, namely, that the list was by no means exhaustive and that all the relevant circumstances were required to be taken into account including the Court’s straining wherever practicable consistently with the interests of justice to avoid taking the radical step of denying a party its day in court – all relevant matters had to be weighed in balance, the ultimate decision reflecting the interests of justice.
[18] [2010] VSCA 305 at [20].
In this case, a little under three months has elapsed since the order for security for costs was made. The appellant has brought an application seeking an extension of time and giving an explanation as to why she is unable to comply with the security for costs order. Having regard to the considerations just identified, in particular those in (i) and (iii) the respondent’s case for dismissal of the appeal is not without some merit.
Nevertheless, it is to be expected that some appellants will have difficulty, for whatever reason, in having an appeal set down within the time period provided for in the Practice Direction (two months). The relevant rule provides for a six month period before an appeal is to automatically lapse (subject to an extension being granted).
It is now early June, the appeal will lapse on or about 23 July 2014, in accordance with Rule 296(2). Notwithstanding that it appears highly unlikely that the appellant will be able to satisfy the security for costs order by that date, such is not necessarily impossible bearing in mind her access to the credit card facility.
I am satisfied, in the circumstances, that the appellant should be given the opportunity to review her position with a view to seeing what further steps might be open to her to enable her to satisfy the security for costs order. Any prejudice that the respondent might suffer as a consequence of a further delay of less than two months or so is not, in my view, of such significance that the appellant should be deprived of this opportunity. The respondent’s interlocutory application that the appeal be dismissed is refused.
Whilst preparing these reasons my thinking turned to the question of whether or not the stay presently in place operated to preclude the appellant from bringing her application for an extension of time. There is authority to the effect that such a stay does not preclude the hearing of an appeal against an order for security[19] and it may be arguable that the appellant’s application should be treated in a similar manner. I have not heard argument and have not formed a final view on this issue. The issue was not raised by the respondent and the application was argued on the assumption (sub silentio) that there was power to hear it. In any event there must be power to vary the stay for the limited purpose of hearing such an application. Given that I have decided to refuse the appellant’s application in any event and that the respondent has not objected to it being heard and determined, insofar as is necessary, I vary the stay previously ordered for this limited purpose only.
[19] Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180.
I will hear the parties on the question of costs.
I make the following orders:
(i)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;
(ii)the appellant’s application is refused; and
(iii)the respondent’s application is refused.