Slinger v Southern White Pty Ltd - [2004] SASC 366

Supreme Court of South Australia
(Civil: Application)
SLINGER & ANOR v SOUTHERN WHITE PTY LTD
Judgment of The Honourable Justice Besanko (ex tempore)
12 November 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for an order reinstating an appeal - where the appeal was not set down for hearing within the prescribed time - construction of rule 95.11 - whether the appellant could show special circumstances in order to extend the time for setting down the appeal - where the appellant had difficulty obtaining funds in order to progress the appeal and had difficulty obtaining certain exhibits to include in the appeal book - application dismissed.
Supreme Court Rules 1987 r 95.11(1), r 95.11(3), r 95.01(2) and r 95.01(2a); Acts Interpretation Act 1915 s 27, referred to.

SLINGER & ANOR v SOUTHERN WHITE PTY LTD
[2004] SASC 366
Civil

BESANKO J: This is an application for an order reinstating an appeal. A Judge of the District Court delivered a judgment in the action on 5^th March 2004 and a notice of appeal was filed by the appellant on 19^th March 2004. For reasons it is unnecessary to detail, the appeal is out of time and the appellants seek an extension of time within which to appeal.
For present purposes the relevant date in terms of the institution of the appeal is 19^th March 2004. The appellants had two months to set the appeal down for hearing (r 95.11(1) Supreme Court Rules 1987). After that time they needed an extension of time within which to set the appeal down and if an order was not made within six months of the appeal being instituted they need to show special circumstances in order to obtain an extension of time.
In other words, if the court is considering whether to extend time after two months, but before the expiration of six months, there is no special test for the exercise of the court’s discretion, although in the ordinary case there would need to be an explanation for the delay and a sound and proper reason for an extension of time. If, on the other hand, the order is not made within six months of the institution of the appeal, then time will only be extended if there are special circumstances (r 95.11(3)).
In this case, the application for an extension of time was made on 20^th September 2004. It would seem that that was within the six month period, (see s 27 of the Acts Interpretation Act 1915). However, the critical event is not the date of the application, but the date of the order. The appellants accept that they must show special circumstances before the time for setting down is extended. The appellants point to two matters and submit that they constitute special circumstances. Those matters and my conclusions in relation to them are as follows:
1.The appellants say they have…

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.

Keep reading for free

Create a free CaseChat account to read Slinger v Southern White Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] SASC 366
Decision Date: 12 November 2004

CaseChat Overview and Summary

The case of Slinger v Southern White Pty Ltd involved an application to reinstate an appeal that had not been set down for hearing within the required timeframe. The appeal was dismissed by the Supreme Court of South Australia. The appellant, Mr Slinger, sought to appeal against a decision that had been made in his previous litigation with Southern White Pty Ltd. The primary issue before the court was whether the appellant could demonstrate exceptional circumstances that would justify extending the time for setting down the appeal, in accordance with the relevant rules of court.

The legal issue before the court was the interpretation and application of rule 95.11 of the Supreme Court Civil Rules 2006 (SA), which sets out the procedure for extending the time for setting down an appeal. The court had to determine whether Mr Slinger's difficulties in obtaining funds to progress the appeal and in obtaining certain exhibits constituted special circumstances that warranted an extension of time. The court considered the appellant's submissions and the relevant legal principles, including the need for certainty and finality in legal proceedings.

The court held that the appellant had not demonstrated exceptional circumstances that would justify extending the time for setting down the appeal. The court noted that the appellant had not provided a satisfactory explanation for the delay in progressing the appeal and had not demonstrated any significant prejudice that would result from the delay. The court held that the appellant's difficulties in obtaining funds and exhibits did not amount to exceptional circumstances, as these were matters that the appellant should have anticipated and planned for in advance. The court dismissed the application to reinstate the appeal.

As a result of the court's decision, the appeal was dismissed and could not be reinstated. The court emphasised the importance of complying with the rules of court and the need for parties to plan and organise their legal proceedings effectively. The court's decision highlights the importance of demonstrating exceptional circumstances to justify an extension of time for setting down an appeal.

Orders