Van Den Heuval v Tucker No. Scciv-00-1212

[2002] SASC 361

VAN DEN HEUVAL  v  TUCKER
[2002] SASC 361

Miscellaneous Appeal (ex tempore)

1. DOYLE CJ:            Mr Van Den Heuval has filed a notice of appeal in this Court appealing against a decision of the District Court dismissing his claim against Mr Tucker.

2. The notice of appeal included an application for an extension of time. The Limitation of ActionsAct 1936 (SA) permits an out of time notice of appeal to be filed if endorsed with an application for an extension of time: s 48(4). The notice of appeal should have been endorsed with a reference to the fact that the extension of time was sought under the Limitation of Actions Act but was not so endorsed. However, that is a relatively minor defect in the scheme of things.

3. The notice of appeal was filed outside the time prescribed by rule 95.02 of the Supreme Court Rules. Mr Van Den Heuval filed an application to reinstate the appeal some 19 months after the notice of appeal was filed. Presumably that application was so expressed because his solicitors thought that the appeal had lapsed under rule 95.11, because it was not set down within the time prescribed by that rule. Whether the appeal had, in fact, lapsed is unclear.

4. If the appeal, when instituted, was irregular, although permissibly instituted, until an order had been obtained extending time, it may well be that the appeal could not be treated as having lapsed. On the other hand, if the correct analysis is that the appeal was regularly instituted, if endorsed under the Limitation of Actions Act, then it may be that the appeal had lapsed.

5. I take the view that I do not need to decide the point.

6. The application that was filed some 19 months after the notice of appeal was filed can be treated as an application for an extension of time within which to file the notice of appeal, although it has never been appropriately amended. In any event, as I have said, the original notice of appeal includes an application for an extension of time within which to appeal.

7. Mr Van Den Heuval’s solicitors later filed a supplementary notice of appeal. For the same reasons, that might have been irregular but once again I do not need to decide that.

8. A Judge of this Court has directed that that supplementary notice of appeal be treated as an application for an extension of time for the filing of the notice of appeal, although it seems to me that technically it was not necessary to so direct.

9. These various applications came on for hearing before me.

10. In the District Court action, Mr Van Den Heuval claimed damages from Mr Tucker for personal injuries suffered in a motor vehicle accident. Mr Van Den Heuval was a passenger in a car being driven by Mr Tucker when the accident occurred. Damages were agreed at $268,900 plus special damages and costs. After a trial in the District Court, the District Court judge dismissed the claim, finding that Mr Tucker was not negligent.

11. Judgment was given for Mr Tucker on 3 November 2000. The time within which to appeal expired on 17 November 2000. The notice of appeal was filed on 1 December 2000, 14 days outside the permitted time. The solicitors for Mr Tucker assert that the notice of appeal was not served until 8 December 2000, and if that is so, the appeal was not duly filed and served until 22 days outside the permitted time. Mr Van Den Heuval does not deny that service may not have been effected until 8 December.

12. The application for an extension of time for setting down or for instituting the appeal, depending on how one treats it, was filed on 10 July 2002, about 19 months later. The supplementary notice of appeal was filed on 7 August 2002, a further month later.

13. It seems that, having sought an extension of time when the notice of appeal was first filed, Mr Van Den Heuval’s solicitors thought that the making of the application itself could be left to a later stage, or it may be that they simply overlooked the matter altogether.

14. Things were then compounded by their failure to have the appeal set down. I must say that the case is a good reminder of the dangers inherent in failing to deal promptly with the fact that a notice of appeal or any other process is out of time. In that sense, the fact that the Limitation of Actions Act  permits the process to be issued, if endorsed with an application under the Act, can be said to set a kind of trap into which those who do not pay careful attention to these matters will fall.

15. The principles by which the application is to be decided are well-established. I refer for convenience to the summary of the principles by Martin J in Thompkins v South Australian Health Commission [2001] SASC 147. The court has a broad discretion to be exercised. Important matters are the length of delay in filing the appeal, the reason for the delay, any prejudice that the respondent might suffer by reason of the delay, and whether there is an arguable case on appeal.

16. The delay in filing and serving the notice of appeal is relatively short. The defendant must have or should have realised that the plaintiff wished to appeal, or might wish to appeal from a relatively early stage. In saying that, I do not suggest that the conduct of the appeal could not have caused some confusion or uncertainty on the respondent’s part. However, in my view, the respondent must have realised from relatively early on that the appellant, Mr Van Den Heuval, might well wish to pursue the appeal.

17. Mr Van Den Heuval has sworn in an affidavit that he received a copy of the judgment on 9 November 2000, that he wished to appeal against it, and that he did not know of the 14 day limit within which an appeal should be instituted. I am prepared to accept that evidence. His oral evidence was to the effect that he relied entirely on his solicitor. When he learned later that the appeal had lapsed, he complained to the Legal Practitioners Conduct Board. He continued to deal somewhat intermittently with his solicitor, in whom he said he had lost confidence. His difficulties were compounded by the fact that he had very limited financial resources.

18. That is a brief summary of his position, but in all the circumstances, it seems to me there is no reason to criticise his conduct.

19. Mr Van Den Heuval’s solicitor, Mr Dixon, has filed an affidavit explaining the delay before and after filing the notice of appeal. He says that he thought that the rules allowed 28 days within which to appeal. He says that he has limited experience in civil matters. In August 2001 he learned, as a result of information given to him, that the appeal had lapsed.

20. At least by then, he realised that there was a time problem that needed prompt attention. After that, there was a long period during which, as I read the affidavit, Mr Dixon dealt with other solicitors and counsel in connection with the proposed appeal and the time problem. But at the end of the day, he failed to identify, and to take steps to remedy, the central problem until 9 July 2002.

21. I must say that the story that appears from the affidavit is a sorry one. It is clear that Mr Dixon’s handling of the matter was unsatisfactory. As I put in argument to Mr James, and expressing it now slightly differently, the affidavit discloses a fair bit of activity but no real progress. It is equally clear, as I have said, that Mr Van Den Heuval is not at fault in any substantial way, except perhaps for failing to instruct other solicitors, and one can hardly be critical of that.

22. In short, the delay in filing the notice of appeal and the further delay in bringing on the application for an extension of time, as should have been done, is due to a failure by Mr Dixon to handle the proceedings with proper care. So was the fact that the appeal was not set down within time, assuming for present purposes that the rule relating to setting down did apply. Mr Van Den Heuval is not at fault.

23. I should say also that I do not accept that Mr Van Den Heuval has deliberately delayed the application or the progress of the appeal. First of all, no application was made to cross-examine Mr Dixon on his affidavit. If such a decision was made, it must have been communicated to Mr Dixon. It has not been put to him that the decision was made or that such a decision was communicated to him. A conclusion to that effect is inconsistent with the tenor of the affidavit that Mr Dixon filed.

24. It may be that a desire by Mr Van Den Heuval, and some acquaintances of his, to obtain some further evidence that would assist the appeal and their damages claims, the nature of which evidence I will come to shortly, did contribute to the delay. But I am satisfied that Mr Van Den Heuval’s wish at all times was to get his appeal heard and that he is not at fault in not doing more to remedy the problem.

25. I am also satisfied that there was no conscious decision to delay matters, and no instruction to Mr Dixon to that effect and no decision by Mr Dixon to that effect.

26. That is all I wish to say for the moment in relation to the reasons for the delay.

27. If time is not extended, Mr Van Den Heuval will be unable to pursue his appeal. The agreed damages are substantial. If time is extended, Mr Tucker will have to face a delayed appeal and, if that succeeds, may face a much delayed retrial.

28. The only suggested prejudice, should time be extended, is the risk that the memory of witnesses will have failed by the time of a retrial. That will arise, of course, only if there is a retrial.

29. The issue at trial was mainly the speed at which Mr Tucker was driving, although linked to that was the issue of whether the axle of the car having broken, an accident was inevitable at the speed at which he was driving or at some lesser speed. I certainly cannot say that the evidence at a retrial would not be impaired with the passage of time, but having regard to the nature of the accident and the issues that arose at trial, my view is that, in the circumstances, the risk of prejudice is relatively slight.

30. I record that Mr Tucker was not called to say that his memory had diminished over time, and no other prejudice was asserted.

31. The material before me indicates that on the hearing of the appeal, Mr Van Den Heuval intends to apply to call fresh evidence. That evidence is evidence of a conversation between a passenger in the car who also has his own damages claim, and Mr Tucker, about the speed at which Mr Tucker was driving. The passenger, Mr Nikolavcic, secretly tape-recorded the conversation as it progressed. The conversation took place in November 2001. Mr Van Den Heuval wishes to argue that the conversation shows that Mr Tucker gave false evidence at trial about his speed.

32. I have read a transcript of a tape-recording of the conversation which, as I have said, was tape-recorded without Mr Tucker knowing it was being done. There may be arguments about the reliability of the recording and about the accuracy of the transcript. I must say that it is not obvious to me that the statements attributed to Mr Tucker are particularly significant, but that is not for me to decide, nor have I assessed them against a thorough reading of the evidence at trial. There are other possible objections to the admissibility of the tape-recording and the transcript, and these are matters for the Full Court.

33. It is possible, in my view, that the Full Court will admit the evidence or, to put it more accurately, it is arguable that the Full Court will admit the evidence. It is also arguable, if it does admit it, that it will affect the outcome of the appeal, although I emphasise that in saying that I have not overlooked the difficulties which I can see in that evidence having an impact on the outcome of the appeal.

34. There is some other fresh evidence which Mr Van Den Heuval has indicated that he wishes to adduce, and that is evidence of photographs showing the instrument panel of the motor car in question. It is to be argued that these photographs would support an argument bearing on the ability of witnesses to observe from the speedometer in the car the speed at which the car was travelling. While once again this is a matter for the Full Court to decide ultimately, on this point I proceed on the basis that there is no arguable case that the evidence will be admitted. On the material before me, it seems to me that this evidence was, within the usual tests, evidence available at trial and there is no arguable case that it should be admitted on appeal.

35. However, having said all of that, I proceed on the basis that the evidence which it is suggested will show that Mr Tucker gave false or unreliable evidence about his speed, might be admitted on the appeal but that this evidence is of little relevance to the application before me. Its only bearing, for present purposes, is on the merits of the appeal. All one can say is that there is an arguable point for its admission and an arguable point it might affect the outcome. But there are so many unknowns, all depending on the decision of the Full Court, but I consider that I can give this matter very little weight at all.

36. In summary, the significant matters before me are that the delay in filing the notice of appeal, and in actually applying formally for an extension of time, is due to the fault of Mr Van Den Heuval’s solicitors. Mr Van Den Heuval is not at fault. The delay in filing and serving the notice of appeal is quite short, although the delay in actually bringing on the application for an extension of time is significant. There has also been significant delay leading to the position that, on one view of things, the appeal has now lapsed, although on another view it has not and, continuing this summary of the relevant matters, the only suggested prejudice is the risk of impaired memory if there is a re-trial.

37. I should add in that context that Mr James also submitted that on appeal there was a prospect of prejudice to the respondent because Mr Tucker would, or might have, difficulty recalling the conversation that had been tape-recorded. All I can say is that conversation occurred a little less than a year ago now and it has been known for some time that the tape-recording was made.

38. In the absence of any evidence from Mr Tucker, in my view the proper approach to take to that point is that there is a possibility that time-lapse will cause him difficulty, but that again has to be treated as a relatively slight matter.

39. Having summarised the position so far, I turn finally to the merits of the appeal. I do not agree that the appeal is lacking in merit in the sense that I have not been satisfied there is no arguable point. However, I realise that the onus is not on the respondent in that respect. I simply record the fact that I am not persuaded that there is no arguable point.

40. I acknowledge the force of the submission by Mr James that there were several bases upon which the District Court Judge could have reached his decision; that the issue on which much of the argument is focused, the particular speed at which Mr Tucker was driving, may well not be decisive; and, furthermore, that the issue on appeal is a factual one on which the Full Court might be slow to differ from the views of the trial judge.

41. On the other hand, I consider that Mr Peek QC, counsel for Mr Van Den Heuval, has identified an arguable point on appeal and that is sufficient. I agree that there are arguments to be put for the appellant worthy of consideration. I go no further than that and need go no further than that.

42. For all those reasons, I conclude that this is a proper case to exercise my discretion to extend time. It is in the interests of justice that I should do so. Therefore, I will order that the time within which the appeal may be instituted be extended to 8 December 2000.

43. In the circumstances, it is also appropriate to order, as a precaution, that the time within which the appeal may be set down be extended. In so concluding I have taken account of the observations made by the Full Court in Carlin and Carlin v Mladenovic and Jurisevic [2002] SASC 90. I will hear the parties as to the date to which I should extend the period for the setting down of the appeal.

44. I will also invite the parties to put any submissions they wish to put to me in relation to the possibility of a consolidated notice of appeal and the filing of appeal books.

45. Finally, for completeness, I should record that when the application came on I was asked to make, and did make, an order under s125A of the Motor Vehicles Act 1959 (SA) joining Motor Accident Commission of 211 Victoria Square, Adelaide as a defendant to the action. Because there is no claim that is not a claim in respect of death or bodily injury and there is no counterclaim, the result of my making that order is that the defendant, Mr Tucker, the insured person, ceases to be a party to the action.

46. Mr Tucker was represented by counsel in his own right when I made that order and, having made that order, counsel sought leave to withdraw. There being no objection to him withdrawing, he did so.

47. I will also hear the parties on the question of costs. Accordingly, although I have not yet pronounced the final order, as I said, I propose to order that time be extended for the institution of the appeal and for the setting down of the appeal and I will now hear from the parties on the consequential matters.