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

1. 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.

2. 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.

3. 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)).

4. 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 had difficulty obtaining funds in order to progress the appeal. This has been caused by or, at least, partly by the respondent taking steps to enforce the judgment in its favour. The appellants’ counsel did not suggest that the respondent had acted otherwise than in accordance with its rights.  It seems to me that the evidence in relation to the alleged lack of funds is vague and general. For example, there are a number of unanswered questions such as why money was spent by the appellants making applications for a stay of execution and not in progressing the appeal, under what circumstances moneys came forward in early September 2004 and what evidence is there that the appellants have the funds to progress the appeal within a reasonable period in the future.

   2.The appellants’ solicitor had difficulty obtaining certain exhibits to include in the appeal book in September 2004. I will not refer to the evidence in any detail. I am prepared to put some weight on this point in the appellants’ favour, but I also note that there is force in the point made by counsel for the respondent that it appears the problem only arose because the appellants did not comply with r 95.01(2) and (2a).

5. I should also mention the question of prejudice to the respondent if the extension is granted, although it needs to be made clear that special circumstances are not established by the absence of prejudice to the other party. It seems on the evidence that there is no particular prejudice to the respondent although it is understandably keen to finalise its position and enforce its judgment.

6. I have considered all the evidence and submissions carefully. In the result, I am not satisfied that the matters identified by the appellant constitute special circumstances within r 95.11(3). The application by document No 7 is dismissed.