Stimson v Ens

[2013] SASCFC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

STIMSON v ENS

[2013] SASCFC 113

Reasons for Rulings of The Full Court

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Blue)

21 October 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

This is an application for permission to appeal to the Full Court. The application concerns a dispute which arose between the parties under the Domestic Partners Property Act 1996 (SA). A Judge of the District Court conducted a trial of the proceedings and delivered a substantive judgment on 17 June 2013 and a costs judgment on 22 July 2013. The appellant filed a notice of cross-appeal to this Court on 19 September 2013, which complains about the order as to costs. Permission to appeal on costs is required pursuant to rule 288(1) of the Supreme Court Civil Rules 2006 (SA). The notice of appeal regarding costs was filed out of time. An extension of time is sought pursuant to rule 295(1)(a) of the Supreme Court Civil Rules 2006 (SA).

Held:

(1) Permission to appeal is granted (at [9]).

(2) The extension of time, as sought, is granted (at [9]).

Supreme Court Civil Rules 2006 (SA) s 288(1) and s 295(1)(a); Domestic Partners Property Act 1996 (SA), referred to.

STIMSON v ENS
[2013] SASCFC 113

Full Court:      Gray, Anderson and Blue JJ

THE COURT.

1. This is an application for permission to appeal to the Full Court.

2. The application concerns a dispute which arose between the parties under the Domestic Partners Property Act 1996 (SA). A Judge of the District Court conducted a trial of the proceedings and delivered a substantive judgment on 17 June 2013 and a costs judgment on 22 July 2013.

3. Ernest Ens, the plaintiff at trial, filed a notice of appeal to this Court on 22 July 2013.  The hearing of Mr Ens’ appeal will require a review of the entire judgment of the trial Judge.

4. Dorothy Anne Stimson, the defendant at trial, filed a notice of cross-appeal to this Court on 19 September 2013. 

5. The plaintiff contended that the notice of cross-appeal was invalid because the appeal related only to the substantive judgment granted on 17 June 2013.  To avoid argument, the defendant filed a notice of appeal in the same terms in separate proceedings.

6. The defendant’s notice of cross-appeal and notice of appeal complain about the order as to costs.  Permission to appeal on costs is required pursuant to rule 288(1) of the Supreme Court Civil Rules 2006 (SA), which provides:

   (1)   Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if—

   …

   (b)   the appeal is limited to a question about costs. 

7. The defendant contends, inter alia, that the permission application is to be considered in the context of it being an appeal in relation to an order made after trial, when other orders are already the subject of appeal presently pending before the Full Court.  On the face of it, the defendant has an arguable case on the question of costs and, in particular, on the question of whether appropriate weight was given to a Calderbank offer.

8. The notice of appeal regarding costs was filed out of time.  An extension of time is sought pursuant to rule 295(1)(a) of the Supreme Court Civil Rules.  That rule provides:

   (1)   The Court may exercise any of the following powers in relation to an appeal or an application for permission to appeal—

   (a)   the Court may extend the time for commencing the appeal or making the application or taking any step in the appeal;

   The defendant’s solicitor has filed an affidavit deposing that the cause of the delay in filing the appeal arose from inadvertence and oversight on the part of the legal advisors of the defendant.  Counsel for the plaintiff, in the event that the Court was disposed to grant permission, did not oppose an extension of time.

9. Permission to appeal is granted.  The extension of time, as sought, is granted.