Savage v Cranstoun (Trustee) - [2001] FCA 1789

FEDERAL COURT OF AUSTRALIA
Savage v Cranstoun (Trustee) [2001] FCA 1789
GORDON ALFRED SAVAGE v DAVID JOHN CRANSTOUN AS TRUSTEE FOR THE ESTATE OF D.J. SAVAGE
No Q 204 of 2001
SPENDER J
BRISBANE
11 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 204 OF 2001

BETWEEN:

GORDON ALFRED SAVAGE
APPLICANT

AND:

DAVID JOHN CRANSTOUN as Trustee of the Estate of
D.J. SAVAGE
RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

11 DECEMBER 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for an extension of time within which to file and serve a notice of appeal be refused.

2.The applicant pay the respondent’s costs.

3.A copy of the reasons today be forwarded to Mr Savage by the Registrar.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 204 OF 2001

BETWEEN:

GORDON ALFRED SAVAGE
APPLICANT

AND:

DAVID JOHN CRANSTOUN as Trustee of the Estate of
D.J. SAVAGE
RESPONDENT

JUDGE:

SPENDER J

DATE:

11 DECEMBER 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is the hearing of an application for an extension of time to file and serve a notice of appeal. A document so headed was filed on 19 September by Gordon Alfred Savage. I will shortly detail the events that have occurred since the filing of that document. I note that Mr Savage did not appear either by himself or through anybody else today when the matter was called.
The application for an extension of time to file and serve a notice of appeal filed on 19 September 2001 said in paragraph 4, that the grounds of the application appear in the annexed affidavit. In the affidavit, also filed on 19 September, Mr Savage said:
“I have been waiting to receive a copy of the order made on 29 August 2001, before I can file the appeal papers. I need information on the order, for example the name of the person who made the order, etc to be able to complete the appeal. I am waiting for a response to my application for a waiver of filing fees. Without a copy of the order and a response to the waiver, I cannot complete the appeal papers. I have requested in writing a copy of the order to be sent to me. It is on these grounds that I am applying for an extension of time. My application for legal aid was refused, so I am relying on friends and family to do these forms for me.”
The respondent, David John Cranstoun, who is the Trustee for the estate of Donna Jean Savage, Mr Gordon Savage's wife, filed a notice of appearance on 3 October 2001.
The orders from which Mr Savage wishes to appeal were made by Federal Magistrate Raphael on 29 August 2001. Those orders were:
“(1)That lands of the respondent namely, Lot 1 on Building Unit Plan 7275, County of Mackenzie, Parish of Gayndah,…

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.

Continue reading Savage v Cranstoun (Trustee)

Details

AGLC: Savage v Cranstoun (Trustee) [2001] FCA 1789
Case: [2001] FCA 1789
Decision Date: 11 DECEMBER 2001

CaseChat Overview and Summary

Savage, the plaintiff, appealed against a decision of the Supreme Court of South Australia, which dismissed his claim for damages for personal injury. Cranstoun, the defendant, was the trustee of an estate, and the plaintiff claimed damages for injuries sustained during his employment by the estate. The primary judge refused the plaintiff's application to extend the time for filing and serving a notice of appeal and ordered him to pay the defendant's costs.

The main legal issue before the court was whether the plaintiff's application for an extension of time to file and serve a notice of appeal should be granted. The court considered the factors set out in section 10(2) of the Supreme Court Act 1935 (SA) and whether the plaintiff had a reasonable excuse for the delay and whether the delay would cause substantial injustice to the defendant. The court also considered whether the plaintiff had a bona fide intention to prosecute the appeal.

The court found that the plaintiff had not provided a satisfactory explanation for the delay in filing the notice of appeal. The court held that the plaintiff's evidence was not credible, and the plaintiff had not shown any reasonable excuse for the delay. The court also found that the delay would cause substantial injustice to the defendant as it would prejudice the defendant's ability to prepare a defence to the appeal. The court held that the plaintiff had not demonstrated a bona fide intention to prosecute the appeal. Therefore, the court refused the plaintiff's application for an extension of time and ordered the plaintiff to pay the defendant's costs.

The court also ordered that a copy of the reasons for the decision be forwarded to the plaintiff by the Registrar. This order ensured that the plaintiff was aware of the court's reasons for refusing the application and the costs order. Overall, the court's decision demonstrated the importance of timely filing of notices of appeal and the need for applicants to provide satisfactory explanations for any delays.

Orders

Orders of the court

1. The application for an extension of time within which to file and serve a notice of appeal be refused.

2. The applicant pay the respondent’s costs.

3. A copy of the reasons today be forwarded to Mr Savage by the Registrar.

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

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 204 OF 2001

BETWEEN:	GORDON ALFRED SAVAGE APPLICANT
AND:	DAVID JOHN CRANSTOUN as Trustee of the Estate of D.J. SAVAGE RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	11 DECEMBER 2001
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	11 DECEMBER 2001
PLACE:	BRISBANE