Slinger v Southern White Pty Ltd (No 2) - [2004] SASC 436

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
SLINGER & ANOR v SOUTHERN WHITE PTY LTD (NO 2)
Judgment of The Honourable Justice Besanko
23 December 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for an extension of time under s 48 of the Limitation of Actions Act 1936 - where the appeal was not set down for hearing within the time prescribed by r 95.11 - where a previous application for an extension of the time to set down the appeal under r 95.11(3) was dismissed – whether a further application invoking s 48 of the Limitation of Actions Act 1936 should be dismissed as an abuse of process – where s 48 of the Limitation of Actions Act 1936 had previously been overlooked by counsel for the applicant appearing on the previous application – whether it is just in all the circumstances to grant an extension of time – extension of time granted.
Limitation of Actions Act 1936 s 48; Supreme Court Rules 1987 r 95.11, referred to.
Slinger & Anor v Southern White Pty Ltd [2004] SASC 366; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147; Carlin v Mladenovic [2002] SASC 90; Keylink Physical Care Pty Ltd v Ergoline (Aust) Pty Ltd [2000] SASC 60; Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104; Jackamarra v Krakouer (1995) 195 CLR 516, considered.

SLINGER & ANOR v SOUTHERN WHITE PTY LTD (NO 2)
[2004] SASC 436
Civil

BESANKO J: This is an application for an extension of time under s 48 of the Limitation of Actions Act 1936 (“LAA”). Section 48(1) of the LAA relevantly provides that where a rule prescribes the time for doing an act or taking a step in an action the court may extend the time prescribed or limited to such extent, and upon such terms (if any) as the justice of the case may require. The applicants seek an extension of time to set down an appeal from the District Court of South Australia to the Full Court of this Court. Rule 95.11(1) of the Supreme Court Rules 1987 provides that an appeal governed by r 95 (which this appeal is) must be set down within two months from the institution of the appeal.
The appeal was not set down within two months. An order extending the time for the setting down of the appeal was not made within six months and by reason of r 95.11(3)(a) the appeal lapsed. Rule 95.11(3)(a) provides:
“(a)Where an appeal has not been set down within 6 months from its institution, or from when the appellant first became entitled to set it down, whichever is the latter, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such…

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: [2004] SASC 436
Decision Date: 23 December 2004

CaseChat Overview and Summary

In the matter of Slinger v Southern White Pty Ltd (No 2), the appellant sought an extension of time to appeal a decision of the Supreme Court of South Australia. The dispute between the parties centred on the timeliness of the appellant's appeal, which was not set down for hearing within the prescribed time under rule 95.11 of the Supreme Court Civil Rules 1936. A previous application for an extension of time to set down the appeal was dismissed. The appellant now sought an extension of time under section 48 of the Limitation of Actions Act 1936, arguing that the dismissal of the earlier application did not take into account the possibility of invoking this statute.

The court was required to determine whether the appellant's latest application should be dismissed as an abuse of process. The court noted that section 48 of the Limitation of Actions Act 1936 had not been considered in the earlier application, and that the appellant's counsel had overlooked this provision. The court also had to consider whether it was just in all the circumstances to grant an extension of time. The appellant argued that the delay in setting down the appeal was due to the respondent's delay in providing necessary documents, and that the appellant had acted with reasonable promptness in pursuing the appeal.

The court found that the appellant had not abused the process of the court by making the current application, as section 48 of the Limitation of Actions Act 1936 had not been considered in the earlier application. The court also found that it was just in all the circumstances to grant an extension of time, given the respondent's delay in providing necessary documents. The court granted the appellant's application for an extension of time.

No further orders were made.

Orders