CARLIN & ANOR v MLADENOVIC & ANOR

DEBELLE J. This is an application for leave to extend the time within which to set down an appeal for hearing.

On 2 June 2000 I made orders under the Encroachments Act 1944 dismissing a claim by the appellants who were the plaintiffs in the action. By notice dated 16 June 2000 the appellants appealed from those orders. The appeal was not set down for hearing within six months from the date of the institution of the appeal. The appeal has therefore lapsed unless an order is made extending the time within which to set down the appeal for hearing: Rule 95.11(3) of the Supreme Court Rules. As the application to extend time is made after the period of six months had expired, the appellants must demonstrate that special circumstances exist to justify the order: Rule 95.11(3). The appellants make the application relying on Rule 95.11(3) and, in the alternative, on s 48(1) of the Limitation of Actions Act 1936.

The appeal was instituted on 16 June 2000. The respondents' address for service was then PO Box 857, Coober Pedy, 5723. The appellants' solicitor sent a copy of the Notice of Appeal by facsimile to that address. At that time, the respondents were not residing in Coober Pedy. They were then residing at 2 Watervale Drive, Greenfields, 5107. However, the fact that the appellants had instituted the appeal came to the attention of the respondents. At a chamber hearing on 20 June 2000, Mr Mladenovic said that he had learned of the appeal on the previous day.

The solicitor who has had the conduct of this matter is employed by Haarsmas Lawyers. She has sworn an affidavit in support of the application. I will call her "the appellants' solicitor". In her affidavit the appellants' solicitor candidly states that she was unaware of the rules relating to the prosecution of appeals concerning civil disputes. Until this appeal, her experience had been confined to the prosecution of appeals in criminal matters. She believed that the Court would prepare a draft index of the appeal books and, on the parties agreeing it, the Court would prepare the appeal books as it does in relation to appeals in criminal matters. She therefore took no step towards setting down the appeal. She did not refer to the Supreme Court Rules to check what was the correct procedure. She was, therefore, not aware that the appeal would lapse if not set down within six months.

Nothing was done towards the preparation of the appeal books despite the fact that the appellants' solicitor received two letters from counsel asking when the appeal might be listed for hearing. The first of those letters was sent on 25 July 2000. Counsel was concerned that he would be available to argue the appeal. On 10 July 2000, Haarsmas Lawyers had changed their address. Counsel's letter was sent to the wrong address. However, it did reach Haarsmas about two weeks after it had been sent. There is no receipt stamp on the letter. That letter did not prompt the appellants' solicitor into any action. She seems to have done nothing at all in response. It is reasonable to infer that, had she made an enquiry at this Court's Registry ("the Registry"), she would have been informed that, as the appeal had not been set down for hearing, it had not been listed. It is reasonable to infer that she would also have been informed of the necessity to prepare appeal books. Those inferences are, as will be seen, borne out by subsequent events. Whatever the appellants' solicitor might have been told, she would have learned sufficient from her enquiry which would have caused her either to consult the Rules or to seek advice from counsel or some other person within her firm.

Not having received a reply to his letter dated 25 July 2000, counsel wrote to the appellants' solicitor on 14 August 2000 asking for a response. That letter too was sent to the old address of Haarsmas but it was received at their new address about one week later. Despite the fact that that was clearly a follow-up letter, it did not prompt the appellants' solicitor to make any enquiry at the Registry or of counsel. Thus, within three months of the appeal being instituted, the appellants' solicitor received two letters which, had they been acted upon, could have directed the appellants' solicitor to what was required for the purpose of listing an appeal for hearing. After receiving the second letter, the appellants' solicitor made no enquiry either of the Registry, counsel or those who employed her.

In early October 2000, counsel spoke to the solicitor by telephone enquiring as to the progress of the appeal. She told him that she was uncertain about the matter and said that she would ask a member of the staff of Haarsmas to look into the matter. Curiously, the solicitor did not ask counsel any questions concerning the procedure for getting appeals listed for hearing. The appellants' solicitor then asked an administrative assistant employed by Haarsmas to contact Registry and ascertain the status of the appeal. The administrative assistant enquired at the Registry and was told that the appeal books would have to be prepared. Again, the solicitor did not check the Rules. To use her own words in her affidavit, "I took this advice on face value and did not consult the Rules for myself at that time".

The appellants' solicitor also asked the administrative assistant to ask the Registry what was the earliest date on which an appeal could be listed in the event that appeal books were prepared within two weeks. There is no evidence when this request was made. The administrative assistant spoke to the Registry staff and was informed that the appeal might be listed in December 2000 but that was unlikely and that it was more likely the appeal would be listed in February 2001. Again, the solicitor did not think it necessary to consult the Rules. I infer from the structure of the affidavit of the appellants' solicitor that these enquiries were made at the Registry in early October 2000.

Throughout most of October and November 2000 the appellants' solicitor was involved in preparing the first quarterly Business Activity Statement for Haarsmas. According to her, this involved an enormous amount of work. By reason of her pre-occupation with this accounting exercise, the appellants' solicitor did not supervise the preparation of the appeal books or enquire whether they had been prepared. In addition to the Business Activity Statement, other duties occupied the appellants' solicitor. She was due to go overseas on 7 December. She said that this placed her under considerable pressure at work during November.

On or about 24 November 2000 counsel again rang Haarsmas. He did not speak to the appellants' solicitor but to the administrative assistant. He was informed that the appeal books had still not been prepared. The appellants' solicitor then asked the administrative assistant to contact the Registry to ascertain the likely date when the appeal might be heard. She was informed that if the appeal books were lodged within two weeks the appeal could be listed in either February or March 2001. The appellants' solicitor still did not turn her mind to the fact that there might be a time limit in respect of the setting down of the appeal.

On 6 December 2000 the appellants' solicitor spoke with the administrative assistant for the purpose of preparing the draft index and the appeal books. She examined the relevant practice direction but did not examine the Rules. The administrative assistant was instructed to complete the task of preparing the appeal books while the appellants' solicitor was overseas.

The appellants' solicitor returned to her work on 4 January 2001. She was immediately occupied with another matter. She took no step in relation to this appeal until about late January 2001 when she received a letter from counsel dated 27 November 2000. That letter had been sent to the previous address of Haarsmas and had not been promptly redirected. In that letter, counsel expresses his concern at the delay in listing the appeal.

On Friday, 2 February 2001 the appellants' solicitor received a facsimile from counsel dated 1 February 2001 advising her that counsel had been in touch with the Registry and had been informed that the appeal had lapsed as it had not been set down within six months of the date of the institution of the appeal. The appellants' solicitor then arranged for an urgent conference with counsel but was not able to obtain an appointment before Monday, 5 February. On 5 February the appellants and their solicitor met counsel. The appellants' solicitor was instructed to make this application. The application was instituted on 9 February.

The appellants' solicitor did not communicate with her clients in the period 16 July 2000 to 2 February 2001. She says that it is her belief that they assumed that the matter was being properly handled and they were completely unaware of the failure to set down the appeal.

The appellant's solicitor is to be commended for her candour. But, unfortunately, the facts to which she deposes in her affidavit disclose an extraordinary failure to acquaint herself with the Supreme Court Rules relating to appeals. Her affidavit also discloses a lamentable lack of supervision by her employers, particularly as they required her to prepare the firm's first Business Activity Statement, a task which has consumed a lot of her time.

This Court has from time to time emphasised that appeals must be prosecuted with all due diligence. As Lander J noted in Whelan v McMahon (1995) 181 LSJS 273 at 279, there is a clear intention in the Rules that appeals are to be prosecuted within the prescribed time limit. The fact that the court reduced the time within which an appeal may lapse if not set down from 12 months to six months is another indicator of the court's intention that appeals should be heard promptly. A party who has a judgment in his favour is entitled to know as soon as reasonably possible whether that judgment stands. The fact that an appeal has been instituted may cause the respondent to delay acting until the result of the appeal is known. There are, therefore, clear reasons of policy which underlie the time limits prescribed in the Rules.

The appellants have the onus of proving special circumstances to bring themselves within Rule 95.11. It is well settled that delay by a solicitor cannot, of itself, amount to special circumstances within the meaning of Rule 95.11: Whelan v McMahon (supra) at 279 - 280; McPhee v Blyth (1992) 166 LSJS 236 at 240 - 241; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147 at 154. Authority aside, I would have held that the long delay in this case occurred for quite inexcusable reasons which do not constitute special circumstances. The appellants' solicitors have done nothing to prosecute this appeal, despite urging from the counsel they had instructed. As Bray CJ said in Re Prescott (1976) 13 SASR 390 at 391, special circumstances require something unusual, abnormal or atypical. See also Jess v Scott (1986) 12 FCR 187 at 195. All that has been shown is gross delay by the appellants' solicitor. Nothing else has been advanced on behalf of the appellants which would in any sense constitute special circumstances. There are, therefore, no special circumstances which justify an extension of time under Rule 95.11.

I turn to consider whether an extension of time should be granted pursuant to s 48(1) of the Limitation of Actions Act. By its terms, s 48(1) applies to time limits prescribed by the rules of Court. The consequence is that the appellants are not obliged to show special circumstances but instead must satisfy the court that it would be just to exercise its discretion in their favour: Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147 at 154.

Although s 48(1) does not require the appellants to show that special circumstances exist, it is implicit that it has regard to the requirements of the procedural rules. To decide otherwise, would be to set the procedural rules at nought. Section 48(1) recognises that the interests of justice may require that a time limit be extended. It is a statutory recognition that procedural rules and efficient case management are not to be seen as ends in themselves and that the ultimate obligation of the court is the attainment of justice: Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154, 172; Jackamarra v Krakouer (1998) 195 CLR 516 per Kirby J at 539.

Section 48(1) invests the court with a wide discretion. The relevant factors include the length of the delay, the reasons for the delay, the question whether there is any prejudice to either of the parties, and the interests of justice. On an application of this kind, regard would also be had to the fact that the respondents had been aware of the appeal: Calvaresi (supra) at 154.

Because they seek the indulgence of the court, the appellants bear the onus of persuading an exercise of discretion in their favour. I have had regard to the following factors.

1. There has been a gross delay in prosecuting this appeal.

2. The delay occurred notwithstanding that the appellants' solicitors were reminded by their counsel on at least two occasions of the need to prepare appeal books and were asked whether the appeal was listed for hearing. Despite those reminders, they did not take any step toward listing the appeal.

3. There will be prejudice to both parties. The appellants will suffer prejudice if this application is denied. The respondents will be prejudiced by having to incur the costs of an appeal and risk the loss of the benefit of a judgment in their favour if the application is granted.

4. The fact that more than six months had passed since judgment before this application was made and the desirability of finality in litigation.

In addition to these factors, I have had regard to the prospects of success of the intended appeal. One of the relevant factors to which regard will be had is whether the appeal has any real prospects of success: Jackamarra v Krakouer (supra) per Gummow and Hayne JJ at 526 - 529, and per Kirby J at 540. Jackamarra was also a case where the appeal had been commenced in time but it had not been set down for hearing within time. Even Brennan CJ and McHugh J who held that, in cases where an appeal has been commenced within time, the merits of the appeal are not a relevant consideration, were prepared to add at 521, "unless, unusually, the court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time". I do not think that the appellants have any real prospects of success. While I am conscious of the fact that I am being asked to make a ruling in respect of my own reasons for judgment, I do not think there is any merit in the appeal. The appellants seek remedies in respect of a situation which they themselves had every opportunity to correct. For a period of at least two years from 1969 to 1972, they owned the land on which the encroaching building is erected. They did not then remedy the situation. They then sold the land and the respondents are now the successors in title. It is quite unconscionable for the appellants now to claim compensation and to seek the removal of the encroachment, especially given that they have known of the encroachment for more than 26 years and commenced this action 26 years after they had sold the land knowing that the encroaching building was erected on it. They have sat on their hands for over 26 years knowing the time position. The appellants' claim is devoid of merit. In addition, the appellants, by the default of their solicitors, have failed to prosecute this action with any reasonable expedition. Notwithstanding that this appeal was commenced within time, the interests of justice require that the application be refused.