Dillon v Boland; Dillon v Cush

Judgment 1ALLSOP P: This is an application for leave to appeal against orders made by a judge of the District Court on 13 July 2012 permitting an amendment to replies that plead malice. The history of the litigation in this matter involves an appeal to the Court of Appeal and then to the High Court from an original hearing in the District Court in 2009. The appeal to the High Court was dismissed and the matter was remitted for a further trial on the question of malice. The proceedings were initially listed earlier this year before the District Court judge who heard the matter at the first hearing. That listing was in February of this year. 2On that occasion that judge, Elkaim DCJ, ordered that the plaintiffs file and serve any further amended replies by the end of February. This order was made without prejudice to the rights of the defendant to object to the amendment to the replies. Further amended replies were filed and served and objection was duly taken. The objections were reduced to a form reflected in a solicitor's letter dated 15 May 2012. 3Argument took place before another District Court judge, Charteris DCJ (who is to be the trial judge), on 17 May 2012. His Honour reserved his decision. On 13 July 2012 he delivered reasons for judgment allowing the amendments. The delivery of reasons was oral. It is sufficient to indicate at this point that the amendments were significant, adding two pages of closely typed particulars to the existing one page of particulars. Substantial argument had been mounted before Charteris DCJ as to why this amendment should not be allowed. There are real questions about the appropriateness of such widespread amendments after remitter in circumstances such as this: see generally Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255. The primary judge, having delivered oral reasons on that day, set the matter down for hearing on 12 November 2012 for four to five days. One would have thought that if the applicant was intending to challenge the decision of the judge in the Court of Appeal that would be done properly. It was not. 4The application for leave to appeal was not filed until 15 October 2012 at the very end of the period identified by the Rules after the filing of a notice of intention to appeal. The matter came before McColl JA as the referrals judge yesterday (Monday 29 October 2012) seeking expedition of the application for leave to appeal and seeking an order from this Court staying the District Court proceedings until the hearing of the leave application. The leave application was listed urgently today. One can immediately see some difficulties with the application. The reason proffered for the delay is that there was no transcript of judgment available and that the transcript of judgment only became available on 24 September 2012. 5With the utmost respect to counsel this is an unsatisfactory explanation. In Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287, which was an application for an extension of time, I said the following in relation to the circumstances in that case, at [14]-[16]: "[14] ... The delay from time to time of transcripts is well known. That is not in any way a criticism of the transcript service. Lawyers, including solicitors, have a responsibility to take a proper note of proceedings. Such a note should have been taken and there is no evidence that it was not taken. If there is any confusion or lack of clarity about any aspect of the matter, the solicitors should consult with each other about a correct and accurate record to allow a prompt decision to be made as to whether or not to take a step under the Civil Procedure Act 2005 (NSW). [15] It is simply not satisfactory for cases to be held up in the District Court for ten months while everyone waits for an overburdened court reporting service to prepare transcripts and then take three months after their delivery [to take steps]. Practitioners are required to keep notes of the essentials of what occurs in Court. This includes, in particular, the terms of judgments and the elements of arguments put to judicial officers. [16] Assuming that was done, there is simply no reason to conclude that the matter could not have been brought on timeously. If those notes were not taken, they should have been and there should be, in those circumstances, no ground to complain about refusal of an application where delay on that ground has occurred." 6The facts in this case are somewhat different. There was evidence led before us that a transcript was before the primary judge in August. The parties knew that from the evidence that has been led before us. The judge was no doubt busy. With respect, it is not sufficient, or appropriate, to come to this Court to say that all adequate steps have been taken because what was done was "to pester the life out of the judge's associate". 7The fact is that after some four weeks had passed the settled reasons of the primary judge were not available. A solicitor's note was apparently available. What was done was to file a notice of intention to appeal and then, less than a month before the trial date, file an application for leave to appeal. Counsel has indicated that the solicitors for the applicant took no steps other than on his advice. So be it. I do not wish to be critical, but an application for leave to appeal should have been filed. Any difficulty with evidence of what happened on the day of delivery of judgment could have been raised with the Registrar of the Court of Appeal. If there was a critical need to have available the transcript of judgment, either the Registrar or I as President could have taken the matter up with the District Court institutionally. That is the appropriate way to deal with difficulties of this kind. 8The matter does not rest simply with the length of time. The solicitors for the respondents made clear in August to the applicant's solicitors that they were preparing for trial and if the filed notice of intention to appeal was to be acted on, it should be acted upon properly. It was not. The trial has now been programmed to commence on 12 November for some three months. The trial for four to five days was set down in July. Witnesses have been marshalled for that hearing and time has been allocated in the District Court. If the applicant wished to challenge the decision, prompt action should have been taken. With the utmost respect, it is not good enough to cry absence of transcript. Practitioners at judgment should be ready and active in taking notes as I have said. If there is a difficulty in ascertaining what occurred, an affidavit should be filed and cooperation is expected by the Court of the two firms of solicitors. 9I should also add that although a notice of intention to appeal is available for those seeking leave to appeal, when a matter is urgent, it is, as a matter of practice, self-evidently quite inappropriate to allow a significant period of time to elapse by using a notice of intention to appeal and then an application for leave to appeal. Leave to appeal is required in a variety of matters - some simple procedural matters where timeliness is of the essence, and other matters which are interlocutory and to all intents and purposes final. An example of the latter is an appeal under $100,000, but for procedural applications for leave to appeal such as this, especially where there is a hearing date involving the resources of both the parties and the courts, it is absolutely essential that parties exercise their rights timeously. 10There may be significant difficulties with the decision to allow amendment to the replies. That is neither a preliminary nor a final view. Mr Alexis' submissions that the particulars merely take up the evidence that was given in the earlier trial may, if I may say so, have force to distinguish the position in Harvey. However, the sight of two and a half pages of amendments to a one page reply, six years after a case was begun and after it had been up to the Court of Appeal and the High Court and back again gives one some pause for thought. Nevertheless, to the extent that there may be any error in the exercise of the discretion of the primary judge, a lack of opportunity to correct it in this Court in a timely fashion before the hearing on 12 November is entirely a product of a lack of action by the applicant. It would be quite wrong now to take a step which would prejudice the trial date. Damages were previously awarded in the sum of $5,000. This matter could have been brought on promptly. It was not. The trial should proceed, unsatisfactory though that will be if, in the end, this procedural step is shown to have been wrong. It is also open to the applicant to take objections to such evidence as counsel thinks fit. 11I would dismiss the application for leave to appeal with costs. 12McCOLL JA: I agree. 13ALLSOP P: The order of the Court is as I have indicated.