Application to extend time to appeal - Principles to be applied - Merits of appeal - Importance of proper grounds of appeal

Supreme Court (Court of Appeal) Rules 2005 (WA)

Application for leave to extend time to appeal dismissed

Asvar v Binning [2009] WASCA 219

City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Girando v Girando (1997) 18 WAR 450

In de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389

1 This is an application by the appellant to extend time to appeal, and to appeal if leave is granted, against a decision of Mazza DCJ (as his Honour then was) on 24 November 2006. In the proceedings below, the appellant sued the respondent for alleged breaches of contract and in misleading and deceptive conduct in connection with the appellant's $48,000 investment in 2001 in a company known as JJG Nominees Pty Ltd (the company). The company was not a defendant to the action. The appellant's claims in contract and misleading and deceptive conduct had been pleaded against not only the respondent, but also a Mr Bell. At the time, the respondent and Mr Bell were the directors of the company and each held one $1 share in the company. The day before the trial started, the appellant discontinued the claims against Mr Bell. At the trial, each of the appellant and the respondent represented himself.

2 The appellant's case in the court below was, relevantly, to the effect that in about July 2001 he entered into an agreement with the respondent, by which he agreed to invest $48,000 in the company in consideration for being made a director of the company and a equal shareholder in the company. The effect of the alleged agreement as regards shares in the company, was to require the allotment of one $1 share in the company to the appellant.

3 The appellant alleged that he paid the $48,000 pursuant to the agreement, and was made a director of the company on 1 August 2001, but was not allotted a share in the company. He claimed, in effect, that there was a breach of contract by the respondent in not procuring the company to allot the share to him. The appellant's claim for misleading and deceptive conduct was to the effect that:

(a) the respondent had represented to the appellant, orally, in June 2001 that:

(ii) the appellant would earn income of up to $100,000 per annum from the company;

(c) in reliance on the representations he entered into the agreement to invest $48,000 in the company.

4 The appellant claimed, inter alia, damages in respect of both causes of action, including loss of the investment sum of $48,000.

5 The evidence at trial included evidence to the effect that the company owned and operated a business called ADS Automation, that the appellant worked in the business after September 2001 and drew an income from it, that by December 2002 the company was unable to pay its debts, and that the company went into liquidation in 2003.

(a) that an oral contract had been made between the appellant on the one hand, and the respondent and Mr Bell on the other, on the terms alleged by the appellant;

(b) that he was not satisfied that the representations alleged by the appellant had been made;

(c) that the appellant was entitled to nominal damages of $100 for the respondent's breach of contract in failing to procure the allotment of the share in the company. As to this, his Honour observed, in effect, that the appellant's absence from the share register was immaterial as the shareholders in the company received nothing from their investments upon the winding up of the company.

7 The notice of appeal was filed approximately three years after judgment had been entered in the court below. The appellant accordingly seeks an extension of time - see pt 5 r 26 and r 29 of the Supreme Court (Court of Appeal) Rules 2005 (WA) in which to bring the appeal.

The principles relevant to an application for an extension of time to appeal

8 The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:

(a) on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;

(b) the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);

(c) nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);

(d) there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:

(iii) the prospects of the applicant succeeding in the appeal; and

(iv) the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] WASCA 55 [11]; [2007] WASCA 55; (2007) 33 WAR 389;

(e) other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];

(f) the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;

(g) in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and

(h) similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].

9 By way of preliminary observation, it is important to recall the significance of proper grounds of appeal. In Asvar v Binning [2009] WASCA 219 at [37], Owen J (Miller and Newnes JJA concurring) said:

While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self-represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58]:

The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties. (authorities omitted)

10 In this appeal the first ground is to the effect that the appellant 'should not be penalised' for being self-represented. That is not a proper ground of appeal. Moreover, it is clear that the primary judge gave careful attention to the issues presented by both parties in the litigation, each of whom was unrepresented at the time (as they are now).

11 The second ground alleges, in effect, that the award of nominal damages is 'out of proportion to the damage and loss suffered by the appellant'. That is not a proper ground for appeal and, in any event, based on the judge's findings, $100 is, if anything, somewhat generous as a measure of 'nominal damages'.

12 The third ground alleges in effect that the judge erred in not having before him all the evidence available from the liquidator of the company. This is not a proper ground for appeal. The judge was bound to consider the evidence led by the parties and no other evidence.

13 The fourth ground of appeal alleges, in effect, that the judge erred in deciding the case on the evidence presented despite having noted that there may have been deficiencies in the evidence, at least in respect of matters raised by the appellant at trial which had not been pleaded. As with the third ground, this is not a proper ground of appeal and the judge was bound to act upon the evidence adduced. Moreover, the appellant, absent leave to amend, was not in a position to require the judge to decide other matters which had not been pleaded.

14 The fifth ground of appeal alleges, in effect, that the judge erred in that he 'did not exercise his discretion' in allowing certain documents into evidence. This is not a proper ground of appeal. The judge did not have a 'discretion' in ruling upon admissible evidence. It is not contended that the judge erred in law in treating admissible evidence as inadmissible.

15 The sixth ground is to similar effect as ground 5. It is said that the judge erred in fact 'by not exercising his discretion' in relation to certain documentary evidence from the liquidator. Again this is not a proper ground and no appellable error is articulated. The appellant says that the evidence would have assisted with respect to his misleading and deceptive conduct claim. That is not correct, having regard to the fact that the judge was not satisfied that the alleged (oral) representations were made.

16 The seventh ground of appeal alleges, in effect, that the judge erred in fact in not dealing favourably with his claim with respect to the loss of profits earned by the business and his misrepresentation claim in relation to the solvency of the business. Again this is not a proper ground of appeal and, in any event, as noted above, the judge did not accept that the alleged representations were made.

17 The eighth ground of appeal alleges, in effect, that the judge erred in failing to receive into evidence a letter from the liquidator of the company to the appellant dated 11 November 2004 in relation to the misleading and deceptive conduct claim. This is not a proper ground of appeal and no appellable error can be discerned in relation to this ground.

18 The ninth ground of appeal alleges, in effect, that the judge erred in fact in finding that the appellant was aware that the share had not been issued to him. In that regard, the judge said:

The plaintiff was plainly aware of the fact that the share had not been issued to him but he did not take any remedial action. He said in his evidence that he did not think that any action was, to use his word, worthwhile.

19 It was clearly open to the judge to make the finding. No error of fact is disclosed.

20 Ground 10 alleges, in effect, that the judge erred in finding that the appellant paid $48,000 'to the benefit of JJG Nominees' when he should have found that the cheque was drawn 'in favour of the business trading name not the company'. This is not a proper ground of appeal, and no appellable error can be discerned from it.

21 There is no prospect of the appellant succeeding on any of the grounds of appeal. The respondent has a vested right to retain the judgment, which right subsisted for three years prior to the filing of the notice of appeal. We would not extend the time for filing the notice, and the application to extend time, and the appeal, should be dismissed.