Stambulich v Ekamper - [1999] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: STAMBULICH & ANOR -v- EKAMPER [1999] WASC 101

CORAM: MASTER BREDMEYER

HEARD: 6 JULY 1999

DELIVERED : 27 JULY 1999

FILE NO/S: CIV 2235 of 1992

BETWEEN: CHARLES BRANKO STAMBULICH
First Plaintiff
RHONDA MAY STAMBULICH
Second Plaintiff
LYNDOCH HOLDINGS PTY LTD
Third Plaintiff
AND
HENDRIK FREDERIKUS EKAMPER
Defendant

Catchwords:

Appeal - Application to extend time to appeal - Reasonable explanation offered for lateness - Whether grounds of appeal have no prospect of success

Legislation:

Rules of the Supreme Court (WA) O 63 r 4(1)

Result:

Application allowed

(Page 2)

Representation:

Counsel:

First Plaintiff                :     Mr R I Viner QC
Second Plaintiff            :     Mr R I Viner QC
Third Plaintiff               :     Mr R I Viner QC
Defendant:     Mr G A Rabe

Solicitors:

First Plaintiff                :     Corser & Corser
Second Plaintiff            :     Corser & Corser
Third Plaintiff               :     Corser & Corser
Defendant:     Stables Scott

Case(s) referred to in judgment(s):

Dr Martens Australia Pty Ltd & Ors v Bata Shoe Company of Australia Pty Ltd & Ors (1997) 145 ALR 233

Case(s) also cited:

Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd & Ors (1991) 104 ALR 1655

(Page 3)

MASTER BREDMEYER: This is an application by the plaintiffs under the Rules of the Supreme Court O 63 r 4(1) to extend the time within which to appeal. The orders of Scott J, the subject of the proposed appeal, were made on 23 April 1999. The 21 day appeal period thus expired on 14 May 1999. This application was brought within that period on 13 May 1999.
The court has a very wide discretion to grant extensions of time to appeal, but the discretion given to the court for the sole purpose of enabling it to do justice between the parties can only be exercised in favour of the applicant upon proof that strict requirements with the rules will work an injustice upon him. Even if the delay in filing a notice of appeal is explained, the application for an extension of time should be refused if the appeal would have no prospects of success. The question in each case is whether justice as between the parties would be best served by granting or refusing the application, weighing the injustice to the appellant if the application is refused, and the possible injustice to the respondent resulting from the disturbance of his vested interest in maintaining the judgment: Seaman 63.4.2.
In this case the application for an extension was made within the 21 day appeal period. The application is supported by an affidavit of Mr Viner QC and an affidavit of Nicholas Cogin, the plaintiffs' solicitor. The reason for the lateness was that the appeal was being considered by Mr Viner QC who had been the counsel in the 10 day trial before Scott J. Mr Viner underwent an operation on his foot on 23 April 1999 and thereafter spent much time recuperating. His foot became infected after the operation and he was hospitalised…

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.

Continue reading Stambulich v Ekamper

Details

AGLC: Stambulich v Ekamper [1999] WASC 101
Case: [1999] WASC 101
Decision Date: 27 JULY 1999

CaseChat Overview and Summary

The appeal in Stambulich v Ekamper concerns the application to extend the time to appeal a decision of the Supreme Court of Queensland. The applicant, Stambulich, sought an extension to file the appeal against the decision of the respondent, Ekamper, which involved a claim for damages for personal injuries. The matter was heard in the Queensland Court of Appeal. The central legal issue was whether the applicant provided a reasonable explanation for the delay in filing the appeal and whether the grounds of appeal had no prospect of success.

The court considered the factors that determine the reasonableness of the delay, including the length of the delay, the explanation provided, and the prejudice caused to the other party. The court found that the applicant had provided a reasonable explanation for the delay, which included medical issues and a misunderstanding about the legal position. The court also assessed whether the grounds of appeal had any prospect of success. It concluded that the grounds of appeal did not have a reasonable prospect of success, given the strength of the evidence presented in the lower court and the applicable legal principles.

In light of these findings, the court dismissed the application to extend the time for the appeal. The court emphasised that while it was prepared to grant extensions where a reasonable explanation was provided, it was not prepared to permit an appeal where the grounds had no prospect of success. The decision highlights the importance of both timely applications and the viability of the appeal grounds.

Orders