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

1. 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.

2. 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 time has been extended after the time limited by this Rule has expired.”

3. An application (“the first application”) was made to extend the time for setting down the appeal and was considered by me. I found there were no special circumstances within r 95.11(3)(a) and dismissed the application (Slinger and Anor v Southern White Pty Ltd [2004] SASC 366). The point argued before me on the first application was whether there were special circumstances justifying an order extending the time for setting down the appeal outside the six month period. This present application raises different considerations in terms of the merits of the application. It requires me to consider whether the justice of the case justifies an extension of time, rather than whether there are special circumstances justifying an extension of time.

4. The applicants submit that the power in s 48(1) was available to extend the time for the setting down of the appeal and that the power could be exercised by a single Judge of this Court. Neither of those propositions were contested by the respondent to the application and they are supported by decisions of this Court (Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147; Carlin & Carlin v Mladenovic & Jurisevic [2002] SASC 90; Keylink Physical Care Pty Ltd v Ergoline (Aust) Pty Ltd [2000] SASC 60). The two issues upon which the fate of this application depends are first, whether I should entertain this application or is it an abuse of process bearing in mind the first unsuccessful application under r 95.11(3)(a) and secondly, whether it is just in all the circumstances to grant an extension of time within the provisions of s 48 (1) of the LAA.

5. As to the first issue, the respondent submits that this application should be dismissed because it is an abuse of process. The first application by the applicants to extend the relevant time limit was dismissed. The applicants should not be permitted to make a second application. The applicants could have relied on s 48(1) of the LAA on the hearing of the first application and the fact that they did not is not a reason to allow a second application for an extension of time.

6. In this case no factual material has been put forward by the applicants which was not before me on the hearing of the first application. The applicants submit that they did not rely on s 48(1) on the first application and a less demanding test applies under s 48(1) of the LAA than that which applies under r 95.11(3)(a) of the Rules. That proposition is correct. In essence, the reason for the second application is that a legal basis for the application for an extension of time was not but could have been put forward at the time of the first application. In my opinion, the proper inference is that s 48(1) of the LAA as a basis for an extension of time was overlooked by counsel who appeared for the applicants on the hearing of the first application.

7. I do not think the second application is an abuse of process. The second application was made within a short time of my order dismissing the first application. As I have said, there is no doubt that the test for an extension of time is different and less demanding under s 48(1) of the LAA than it is under r 95.11(3)(a) of the SCR. The reason s 48(1) was not raised on the first application was an oversight by the applicants’ then counsel. In reaching the conclusion that the second application is not an abuse of process I have had regard to the reasons of the Chief Justice in Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189; (2001) 80 SASR 104 at [53] – [71] especially at [63].

8. I turn now to the merits of the application. The test under s 48(1) of the LAA is clearly less demanding from the applicant’s point of view. There have been a number of cases in this Court where an applicant has been unable to show special circumstances within r 95.11(3)(a) but has been able to show that it is just to grant an extension of time (Calvaresi & Rota Forma Pty Ltd v Lawson and Lawson (supra); Keylink Physical Care Pty Ltd v Ergoline (Aust) Pty Ltd (supra)).  In my opinion, it is just to grant an extension of time in the circumstances of this case for a number of reasons.  First, if I do not grant the order the applicants will have lost their right of appeal.  By contrast, there will be no actual prejudice to the respondent if I grant an extension of time, although there is the worry and anxiety associated with being unable to finalise its position.  Secondly, although the relevant time limit is two months, the applicants would probably have been granted an extension of time if the Court had been considering such an application within six months of the institution of the appeal.  On the first application I said that the appeal had been instituted on 19^th March 2004 and the first application for an extension of time was issued on 20^th September 2004, in other words, on the last day of the six month period.  On this application, counsel for the applicants submits that the appeal was instituted on 8^th April 2004 and therefore the first application was issued, although not heard, well within the six month period. I do not need to resolve that issue. The significant point is that on any view the delay in terms of the six month period is not significant. Thirdly, there is an explanation for the delay which is that the applicants were short of funds and the applicants’ solicitors were having difficulty obtaining the exhibits for inclusion in the appeal books as the six month time limit approached. The explanation was not enough to constitute special circumstances for the purposes of r 95.11(3)(a) but it is an explanation for the delay for the purposes of s 48(1).

9. I have not had regard to the merits of the appeal.  I do not think that it would be appropriate for me to do so in circumstances where I have not been invited to examine all the evidence and therefore I am not in a position to come to a clear conclusion that the appeal could not succeed (Jackamarra v Krakouer (1995) 195 CLR 516 per Brennan CJ and McHugh J at 521).

10. I will grant an extension of time to set down the appeal pursuant to s 48(1) of the LAA.  I will hear the parties as to the appropriate date.

11. The order should be subject to the following conditions:

    1.I have already made an order that the applicants pay the respondent’s costs of the first application.  The quantum of those costs have not yet been fixed or agreed and so as a condition of setting the appeal down the applicants shall pay $6,000 into Court to abide the fixing of the respondent’s costs.

    2.The applicants are to take all steps necessary to have the appeal listed for hearing as soon as reasonably practicable.

12. I will hear the parties as to the costs of the second application and any other orders.