Singh v Starkey - [1999] QCA 279

99.279

COURT OF APPEAL

McMURDO P DAVIES JA CULLINANE J

Appeal No 3746 of 1998

RAGHBIR SINGH, NIRMAL SINGH SANDHU

and MUKHTIAR SINGH	Applicants
and
PETER JOHN STARKEY	First Respondent
and
SOHAN SINGH SARANAH and TARSEM
SINGH SIHOTA	Second Respondents

BRISBANE
..DATE 06/09/99
060999 T6/BP17 M/T COA218/99
THE PRESIDENT: Justice Davies will deliver his reasons
first.
DAVIES JA: This purports to be an application to set aside
the decision of the Senior Deputy Registrar of Appeals dated
6 July 1999 that Appeal No 3746 of 1998 be struck out.

There was however no relevant decision of the Senior Deputy Registrar on that date. On that date she performed the administrative act of entering a self-executing judgment made by this Court on 15 June this year.

That order was that the time for institution of the appeal be extended as necessary to regularise the service effected on 30 April 1998; that unless the appellants by 4 p.m. on the date three weeks hence file a record of proceedings in the Court for the purposes of appeal, in accordance with the requirements of the Registrar, the appeal be taken to be struck out without further order required from the Court; and that the appellants pay the other parties' costs of and incidental to the application to be taxed in any event.

However the application may and should, as the applicants
contended in their written outline, be treated as an
application to extend the time limited by the self-executing
order. That the Court has power to grant such an
application even after such an order has been effected is
clear: see rule 7(1) of the UCPR and FAI General Insurance
Company Limited v. Southern Cross Exploration NL (1988) 165
060999 T6/BP17 M/T COA218/99
CLR 268.

The question then is whether this Court should in the circumstances exercise its discretion to grant an extension of time within which the applicant may prepare and file the appeal record books.

There are at least two factors which tend against the granting of that application. In the first place, there has been substantial and continuing delay by the applicant in proceeding with this appeal which is plainly one which should be proceeded with promptly and it is delay for which there has been no, in my view, satisfactory explanation.

In the first place the notice of appeal was served out of time as the order of 15 June indicates; and, as also appears from the short reasons for judgment which were given upon the granting of that application on 15 June, this Court gave fair warning on that day that further delay would not be tolerated.

The affidavit of Mr Leppa in my view gives an incomplete and misleading account of what took place since that date. I give only a few examples of this. Reference is made to an inability to obtain for some time a copy of the order of 15 June. That order was short and clear, the delay could not possibly have been…

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.

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Details

Case: [1999] QCA 279
Decision Date: 6/09/1999

CaseChat Overview and Summary

The Court of Appeal in Singh v Starkey heard an application from the applicants to set aside a decision that their appeal be struck out. The appeal was in relation to a case involving the applicants and the first and second respondents. The applicants sought to extend the time for filing the record of proceedings, which was required by a previous court order. The court considered whether it should exercise its discretion to grant an extension of time for the applicants to prepare and file the appeal record books.

The court identified two factors that tended against granting the extension. Firstly, there had been substantial and continuing delay by the applicants in proceeding with the appeal, for which there was no satisfactory explanation. Secondly, the delay had affected the administrator's standing and the performance of his work. The applicants argued that the primary judge was wrong in stating the principle relevant to the case, but the court did not agree and found the prospects of success on appeal to be slim.

The court concluded that the application should be refused due to the unexplained delay and the slim prospects of success on appeal. The court granted the application to be refused with costs. The case demonstrates the importance of timely compliance with court orders and the potential consequences of delay in legal proceedings. The court's decision also highlights the need for a satisfactory explanation for any delay in proceeding with an appeal and the potential impact of such delay on the administration of justice.

Orders