Roy Galvin & Co Pty Ltd v Ives [No 2] - [2013] WADC 128

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ROY GALVIN & CO PTY LTD -v- IVES [No 2] [2013] WADC 128

CORAM: HERRON DCJ

HEARD: 29 JULY, 2 AUGUST 2013

DELIVERED : 7 AUGUST 2013

FILE NO/S: CIV 164 of 2009

BETWEEN: ROY GALVIN & CO PTY LTD
Plaintiff
AND
BENJAMIN WILLIAM IVES
Defendant

Catchwords:

Appeal from registrar - Application for extension of time - Significant delay - Prejudice - Summary judgment

Legislation:

District Court Rules 2005 r 15(2)
Rules of the Supreme Court 1971 O 3 r 5

Result:

Application for extension of time and appeal dismissed

Representation:

Counsel:

Plaintiff: Mr J F Park
Defendant: In person

Solicitors:

Plaintiff: Park Linfoot Legal Solutions
Defendant: Not applicable

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Simonsen v Legge [2010] WASCA 238

HERRON DCJ: This is a notice of appeal from a decision of Registrar Kingsley delivered 18 November 2009, in which he granted summary judgment to the plaintiff in the sum of $78,047.88, and an application for an extension of time in which to appeal which is expressed as an application pursuant to O 3 r 5 Rules of the Supreme Court (RSC).
The matter originally came before me on Monday 29 July 2013. At that time there was also before me an application by the defendant to vacate the hearing of his application for an extension of time in which to appeal and for an order that he be given leave to file and serve an affidavit in support of his application for an extension of time to appeal. After hearing the parties, I made the following orders:
1.By no later than 4.00 pm Wednesday 31 July 2013 the defendant file and serve an affidavit and any further materials he intends to rely upon.
2.The hearing of the application for an extension of time within which to appeal be adjourned to Friday 2 August 2013 at 2.15 pm.
3.Costs of today be reserved.
Mr Ives failed to comply with order 1 and did not file an affidavit in support of his application for an extension of time until the morning of 1 August. Counsel for the plaintiff does not take issue with the late filing of the affidavit.
In response the plaintiff filed an affidavit sworn by Kellie-Marie Woods sworn on 1 August 2013 and filed the same day. At the resumed hearing before me on 2 August, counsel for the plaintiff also sought leave to hand up two further affidavits in response to Mr Ives' affidavit sworn 31 July 2013. The first affidavit was sworn by Robert Paul Sherwood on 1 August 2013 and the second affidavit by Raymond John Robins sworn on 1 August 2013. Mr Ives' did not oppose those affidavits being handed up and accordingly, I granted leave for each of the affidavits to be filed and relied upon by the plaintiff in opposition to Mr Ives' appeal.
Mr Ives also swore two further affidavits on 1 August 2013 and sought leave to rely on each of those affidavits. The first affidavit was described as 'Purpose: evidence of service of affidavit evidence on the plaintiff and related matters'. That affidavit was seemingly sworn in support of an anticipated application to extend the time I ordered for Mr Ives to file an affidavit in support of his application for an extension of time. Although counsel for the plaintiff opposed leave being granted to rely on the affidavit, on the basis it was irrelevant, given I had already granted Mr Ives an extension of time to file his affidavit of 31 July, I allowed Mr Ives to rely on the affidavit.
The second affidavit sworn on 1 August 2013 is described as 'Purpose: in support of an extension of time to appeal'. Counsel for the plaintiff did not oppose Mr Ives' relying on that affidavit and I allowed an extension of time for the affidavit to be filed.
Finally, Mr Ives also sought leave to rely upon an affidavit sworn by him on 2 August 2013 described as 'Purpose: in support of hearings for 2 August 2013'. That affidavit describes a telephone conversation between Mr Ives and Robert Sherwood, initiated by Mr Ives, on 24 July 2013. I refused Mr Ives leave to rely on that affidavit on the basis of the lateness of the affidavit being filed and also because it records telephone conversation between Mr Ives and a third person on 24 July 2013 nearly four years after summary judgment, the subject of the appeal was granted.
The plaintiff's application for summary judgment against Mr Ives came on for hearing before Registrar Kingsley on 20 October 2009. Registrar Kingsley delivered reserved written reasons for decision on 18 November 2009 granting the application and entering judgment for the plaintiff in the sum of $78,047.88 together with interest and costs of the action and the application.
By r 15(2) District Court Rules 2005, an appeal against a decision of a registrar to a judge must be commenced within 10 days after the date of the decision or such longer period as a judge may allow. Therefore, Mr Ives was required to file a notice of appeal against the decision of Registrar Kingsley by no later than 29 November 2009. The purported notice of appeal against the decision of Registrar Kingsley, which also seeks an order for an extension of time in which to appeal, was filed by Mr Ives on 9 July 2013. It is therefore approximately three years and seven months out of time.
Although the application for an extension of time purports to be made pursuant to O 3 r 5 RSC, I take the application to also be pursuant to r 15(2) District Court Rules (DCR). In my view, the same principles apply.
In support of his application for an extension of time, Mr Ives cites Simonsen v Legge [2010] WASCA 238 [8] which sets out the relevant principles in relation to an application for an extension of time to appeal. As Mr Ives submits there are generally at least four major factors to be considered:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson[1990] HCA 30; (1990) 64 ALJR 458, 459;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198; In de Braekt v Powell[2007] WASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Aust) Ltd[2009] WASCA 120 [33].
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450 at 454;
(g)in relation to the third matter referred to in subpara (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Aust) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Aust) Ltd [16].
I also note that the notice of appeal in that case was filed approximately three years out of time.
Paragraph 3.5.1 of the Civil Procedure Western Australia refers to the purpose of the rule for an extension of time.
The rule is remedial and confers a broad power upon the court to relieve against an injustice which is not readily to be limited by judicial fiat: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283, 286; 77 ALR 411 at 417, 420 and Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86. Nevertheless, a party in breach of a requirement of the Rules as to time does not have an unqualified right to an extension. Prima facie, time limits must be obeyed and in order to justify the court granting an extension of time there must be some material on which it can exercise its discretion (Ratnam v Cumarasamy[1964] 3 All ER 933 at 935; [1965] 1 WLR 8 at 12). If a solicitor fails timeously to take the procedural steps which are necessary to advance his client's cause, the system of justice is in danger of breaking down: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 254; [1968]1 All ER 543 at 552.
In the past it was said that the Rules should never be allowed to be an instrument of tyranny. In general, this meant that where an extension was sought to enable genuine issues to be litigated and this could be done with fairness to all concerned, it was appropriate to make the order (Outboard Marine Australia Pty Ltd v Byrnes[1974] 1 NSWLR 27 at 30). Now, however, the principles and objects of case flow management which are contained in O 1 rr 4A and 4B must now be taken into consideration: Melville v East End Holdings Inc [2003] WASCA 133.
A relevant factor is also the desirability that there be finality of litigation and that a litigant who has obtained judgment in its favour has a vested right to retain the judgment: Simonsen v Legge [8](a).
It is also necessary to consider the balance of fairness and justice to the parties in granting or refusing an application for an extension of time.
I accept the factors outlined in Simonsen v Legge are factors that I need to consider in determining Mr Ives' application for an extension of time.
In par 6 of his written submissions filed in support of an application to vacate the hearing date on 29 July to enable him to file an affidavit in support of his application for an extension of time, Mr Ives' itemises a number of matters and documents he wished to put before the court in support of his application. Mr Ives has now sworn and filed his affidavit addressing those issues and annexing those documents.

Merits of the appeal

The notice of appeal filed by Mr Ives does not set out any grounds of appeal. It is therefore impossible to assess from the notice whether there is any merit in the appeal. Although an appeal from a decision of a registrar is a hearing de novo and it is unnecessary to identify errors made by a registrar, given the significant length of the delay in filing a notice of appeal, the notice should have contained grounds of appeal and identified the alleged errors made by the registrar by which an objective assessment can be made as to the likelihood of success of the appeal.
In his affidavit sworn on 31 July 2013 at pars 10 to 15, Mr Ives purports to explain why he believes an appeal will succeed. However the affidavit seems to simply repeat the same matters and issues raised before the registrar and which he considered and rejected in ordering summary judgment.
I accept extracts from a cash disbursements journal 1 June 2007 to 30 June 2009 shows Exodus Plumbing Pty Ltd ordered and paid for materials from the plaintiff but I am unable to relate those entries to the invoices the subject of the summary judgment. The plaintiff's invoices annexed to the Jupp affidavit 12 August 2009 do not seem to relate to the journal entries. In any event, I am not satisfied that Mr Ives has produced any further materials which if produced at the hearing of the summary judgment application demonstrates he has an arguable defence that he was not personally liable for payment of the plaintiff's outstanding invoices.
Counsel for the plaintiff points to annexure (b) of Mr Ives' affidavit of 1 August 2013, an invoice on an Exodus Plumbing Pty Ltd letterhead dated 20 July 2007 addressed to Nandos Northbridge, and submits there is no evidence an invoice under Exodus Plumbing Pty Ltd was ever sent to the plaintiff. The fact that the plaintiff has produced an invoice in the name of Exodus Plumbing Pty Ltd but not an invoice addressed to the plaintiff supports the plaintiff's case, according to counsel for the plaintiff, that the monies claimed subject of the summary judgment are properly claimed against Mr Ives and not against Exodus Plumbing Pty Ltd. I accept that submission.
Counsel for the plaintiff also emphasises that the credit application which underpinned the plaintiff's claim that the monies were owed by Mr Ives personally, was with Mr Ives personally and not Exodus Plumbing Pty Ltd.
Even if the documentation in relation the trading relationship between the plaintiff and Mr Ives' company Exodus Plumbing Pty Ltd was not before the registrar, they appear to address the same issues Mr Ives addressed in his affidavit sworn 2 July 2009 in opposition to the plaintiff's application and which were considered by the registrar.
I am not satisfied the annexures to Mr Ives' affidavits demonstrate a sufficient basis showing Mr Ives has an arguable defence to the plaintiff's claim.
I accept the submission of counsel for the plaintiff that the materials and documentation now produced by Mr Ives were all available and could have been before Registrar Kingsley at the hearing of the summary judgment application. Mr Ives has not provided any satisfactory explanation as to why he did not put the documentation before Registrar Kingsley. That is a matter telling against the exercise of my discretion to grant an extension of time.

Delay

However, even if the further materials did raise an arguable defence, Mr Ives still needs to satisfy me of the other factors, particularly given the length of the delay.
Addressing the reasons for the delay, Mr Ives in his affidavit of 31 July 2013 sets out a number of issues personal to him including a failed marriage, failed relationships, a failed business, various court actions and cases in which he has been involved and a lack of legal representation and advice. He also refers to a lack of finances. Finally, he says he suffers from acute anxiety disorder and depression and annexes a report of a consultant psychiatrist Dr Bender addressed to the District Court dated 26 July 2013.
Dr Bender is employed as a consultant psychiatrist in the City Community Mental Health Service. His report states that Mr Ives first attended the service on 28 March 2011 and his case made active on 8 April 2011. Dr Bender assessed Mr Ives on 20 May 2011 and diagnosed Mr Ives as suffering a depressed mood and an anxiety disorder. He commenced him on treatment with anti‑depressant medication. Dr Bender intermittently reviewed Mr Ives throughout 2011. Mr Ives was discharged from the clinic failing to attend appointments in December 2011 and January 2012 but his file was reactivated in March 2012 after further contact with the clinic. Thereafter Mr Ives received further treatment during 2012.
Medical reports of Dr Tim Smith of 31 March 2010 and Dr Kolnik of 31 March 2010 have also been annexed. Those reports record Mr Ives was suffering from anxiety and stress.
Importantly, none of the medical reports address the reason for the failure to commence an appeal within 10 days as is required by r 15(2).
Neither do the various matters listed by Mr Ives in his affidavit in explaining the reason for the delay in filing his notice of appeal in time satisfactorily explain the failure and the considerable delay. While I accept Mr Ives has in the last few years been under some stress and experienced some difficult times in his life, I am not satisfied that those experiences satisfactorily explain the reason for the delay in filing the notice of appeal. In particular, I do not accept that the various court cases, in which he has been involved, provide any justification or reason for the delay in filing a notice of appeal against the decision of the registrar. If anything, the various court matters in which Mr Ives was involved must have impressed upon him the need to comply with court rules and if he failed to do so he would be subject to adverse court outcomes. If Mr Ives was able to initiate and become involved and participate in the various court matters, he should in my view have been able to attend in a timely way to any appeal he wished to file against the decision of the registrar.
Neither am I persuaded his lack of legal representation or advice is a relevant consideration. Mr Ives impresses me as being very familiar with the court processes and having a reasonable understanding of how the legal system works. It is evident Mr Ives has commenced a number of court actions. Therefore it would not seem any issues of lack of legal representation, or stress or depression or his various traumatic life experiences are relevant or provide any satisfactory explanation for failing to file a notice of appeal within time and in particular for the extraordinary delay of three years and seven months.
Although at par 6 in his affidavit Mr Ives purports to explain that he was under the mistaken impression that an appeal from the registrar's decision lay by way of prerogative writ, he was quickly informed that view was mistaken when his application was argued in the Supreme Court. Among the materials is a notice of motion in Supreme Court CIV 2549 of 2011 referring to hearings in April 2012. That matter appears to relate to the decision of Registrar Kingsley. However, the proceedings were commenced in 2011 and therefore provide no proper explanation for a failure to file an appeal in November 2009. Again, there is a failure of any explanation as to why he did not seek to take further action sooner in relation to an appeal against the registrar's decision.
Also, annexed to the affidavit of Kellie-Marie Woods is a document described as notice of appeal from a decision of registrar in the District Court action dated 21 February 2011. That notice of appeal is in very similar terms to the notice of appeal before me except that it sought an extension of time to appeal to 21 February 2011. Mr Ives apparently did not proceed with the notice of appeal. Counsel for the plaintiff submits there was an ulterior motive for the notice of appeal being filed in 2011. It coincided with the plaintiff's solicitors pursuing creditor's petition proceedings in the Federal Court in relation to the judgment debt. Plaintiff's counsel submits there is more than a coincidence that the current notice of appeal is filed at the same time the plaintiff is perusing further Federal Court proceedings.
In any event, any misapprehension by Mr Ives as to the correct process to appeal against the registrar's decision should not be visited upon the plaintiff who has the benefit of a judgment.
In summary I am of the view the reasons provided by Mr Ives for the delay do not satisfactorily explain the delay.
Neither is any satisfactory explanation provided for the length of the delay.

As to the extent of any prejudice to the plaintiff, Mr Ives simply states at par 16 of his affidavit the plaintiff is not prejudiced because judgment continues to accrue in relation to the judgment debt and the plaintiff is seeking interest in Federal Court bankruptcy proceedings. I am informed from the bar table that the plaintiff has filed a creditor's petition in the Federal Court seeking to recover the judgment monies. The plaintiff has not received any payment of judgment sum. Given the various matters referred to by Mr Ives in his affidavit including the various unsuccessful court actions in which he has been involved, which presumably have resulted in costs orders being made against him, and the fact that he was unemployed between 2009 and 2012, there must be a real risk the plaintiff will not be able to recover payment of the judgment sum against Mr Ives. Therefore Mr Ives suggestion the plaintiff will be able to recover interest against him if it is successful has a hollow ring to it.
It is self-evident that even though the plaintiff has yet to obtain any payment from the judgment, it will suffer significant prejudice if an extension of time to appeal is granted to Mr Ives. It has the benefit of the judgment and obtained a right to proceed as though an appeal would not be filed and it was no longer at risk the summary judgment might be set aside. There is also the fact that the plaintiff's claim the subject of the judgment goes back to an agreement entered into between the parties in June 1999 and in relation to goods provided pursuant to that agreement in 2008 and 2009.
In response to par 17 of Mr Ives' affidavit of 31 July 2013, counsel for the plaintiff submits the suggestion by Mr Ives that the plaintiff can issue third party proceedings highlights the prejudice the plaintiff will suffer if an extension of time to appeal is now granted. It is too late to now contemplate third party proceedings. Had the issue been raised at the time of the summary judgment application, the plaintiff may have been able to take action.
Also, the fact that Exodus Plumbing Pty Ltd has since been deregistered by ASIC, self-evidently causes prejudices to the plaintiff because it can now no longer proceed against Exodus Plumbing Pty Ltd and cannot recover against that company.
There is force in those submissions.
As was said in Simonsen v Legge the cogency of the explanation increases as the period of the extension sought increases. I am not satisfied that the explanation provided by Mr Ives in his affidavit provides any cogent or satisfactory explanation for the length of the delay and the reasons for the delay. Nor am I persuaded there is any merit in the appeal.
Even if I considered there was some merit in the appeal, that is, that there is an arguable defence, I am not satisfied it is in the interest of justice and fairness, given the extraordinary delay of three years and seven months to now grant an extension of time to appeal. In my view the balance of justice and fairness lies heavily in the plaintiff's favour. Further, in my view, if an arguable defence to the plaintiff's claim is now shown there is no automatic entitlement to be granted an extension of time to appeal. All matters relevant to the exercise of the power and the discretion to grant an extension need to be weighed. The fact of substantial delay and wasted costs assume importance on an application for an extension of time, particularly in light of the High Court's observations about the effects of delay being not only upon the parties to the proceedings in question, but also upon the courts and other litigants. Limits will be placed upon how parties conduct litigation and they will generally be required to comply with the rules of the court. Whether a party had the opportunity at an earlier time to raise issues now sought to be raised is a relevant considered. See: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 per Gummow, Hayne, Crennan, Kiefel and Bell JJ [102] – [103], [111] – [114].
I gained the impression from Mr Ives's submissions that because he is firmly of the view he had and has an arguable defence to the plaintiff's claim, he is automatically entitled to an extension of time in which to appeal notwithstanding the significant delay he has caused and the prejudice the plaintiff will suffer if an extension of time is granted. If that is Mr Ives' view, it is misconceived and contrary to the principles referred to in Aon v Risk Services Aust Ltd v ANU and Simonsen v Legge.
In his submissions Mr Ives says he made conscious decisions as to which of the various legal matters he was involved in, be given priority. He did not regard this matter, he says because he was certain the decision of the registrar was wrong, as requiring priority. He made a conscious decision to delay pursuing his rights of appeal. He says he left the matter on the back-burner. Inconsistently however, he also says he cannot recall why he did not lodge an appeal in time and can only guess. He suggests the stress he was under at the time prevented him from filing the appeal in time and also says that because of the stress he was under he was taking medication and drinking heavily. As counsel for the plaintiff submits, Mr Ives elected which cases he wished to proceed with and has elected to proceed with other cases over this case.
The consequences of Mr Ives' decision to give priority to other cases and delay proceeding with an appeal in this matter should not be visited upon the plaintiff. In my view, Mr Ives' conscious decision not to purse his rights of appeal in accordance with the time constraints provided by the rules weigh heavily against him now being granted an extension of time to appeal simply because he has now determined he is ready to proceed with an appeal.

Orders

1.The application for an extension of time to appeal be dismissed.
2.The appeal be dismissed.
3.The defendant pay the plaintiff's costs of the application and the appeal including the costs of the hearing on 29 July 2013.