HIA Insurance v CTTT & 2 Ors

8 However, the actual work ceased to be carried out by the builder on 20 May 1999. This statement recorded in the document above does not accord with work ceasing on 20 May 1999. 9 In March 2001, after hearing submissions from the applicant and respondent the Tribunal Member joined the insurer HIA Insurance Pty Ltd as second respondent. On 10 August 2001, submissions were made by the plaintiff contending that the Tribunal was not vested with jurisdiction to determine the insurance question. The Tribunal Member gave an ex-tempore decision that the Tribunal has such jurisdiction. On 11 November 2002 the Tribunal Member made a determination in relation to a preliminary issue. HIA put on evidence and made submissions in relation to that issue. HIA now asserts that it should not have been joined as a party in the first place and appealed that decision. Regulation 27(1) and (2) of the Fair Trading Regulations 1999 empowers the Tribunal Member to join parties. 10 Early in the judgment the Tribunal Member recorded: "In March, 2001 after hearing submissions from the applicant and respondent I joined the insurer HIA as 2nd respondent. Apart from any other considerations there were suggestions that the policy procured by the builder might be tainted and unenforceable. For example, the insurer might not be obliged to meet any claim made under the policy if the fact that the building contract was terminated on the grounds of alleged breach by the builder had not be disclosed. And of course there was an associated legal minefield touching a raft of issues such as whether or not the policy was subject to the Insurance Contract Act (C'th) and if it did what were the rights of the insurer under, for example, s.28 of that Act." 11 A document entitled "Outline of Allegation and Facts in accordance with directions of Dr Smith on 26 February 2003" appears at Tab DL8, which is exhibited to the affidavit of Dino Liistro sworn 26 February 2003. The first subheading is "Questions for Determination" and at paragraph 1.1 to 1.6 questions are posed. The Tribunal Member referred to this document in his judgment where he stated: "The Hearing

In deciding the question I had the benefit of oral submissions made on behalf of all parties, an outline of allegations and facts prepared by the 1st respondent, an affidavit of Robert Loney and chronology from the solicitors for the 2nd respondent."

It is not clear what role this document had in the refining of the preliminary issue for determination. 12 The Tribunal Member does not go on to determine the issues described in the document but rather described the issue for determination in this way: "Interlocutory Application

Some time ago it became clear the issue of insurance was one of the major questions in the case and that, although a certificate of insurance had been issued, the worth of the insurance cover behind that certificate was a live, and for some purposes a threshold, issue. As a result I agreed to a hearing on the preliminary matter of the insurance cover evidenced by the certificate issued by the 2nd respondent in December, 1999. It was not actually put this way, but the consequence of a finding that the insurance cover was nugatory would be that the cross claim at least in its present form would be ill founded and liable to be struck out." 13 Hence, the issue for the Tribunal Member's preliminary determination seems to be confined to the effect of insurance cover as evidenced by the certificate issued by the second respondent in December 1999. The preliminary question posed this way does not canvass the effect of s 28 of the Insurance Contracts Act 1984 (Cth). 14 The Tribunal Member in his reasons for judgment concluded:

"I conclude that the policy evidenced by the certificate is presumptively binding on the parties and satisfies the statutory requirements of the Home Building Act. A consequence of this finding is that the 1St respondent is entitled to bring a cross claim which must be considered on its merits." 15 The Tribunal Member made an order that the application to strike out the cross claim be refused.

Extension of time to appeal 16 Although the time limits prescribed by the Rules may be extended, a case for such extension must be made. An extension of the time provided for appealing or seeking leave to appeal is not to be had merely for the asking. The decision to grant or refuse such an extension involves the exercise of a discretion. The fact of delay is a relevant consideration in this regard. Time limits for appeal are fixed for good reasons. The purpose for such time limits has been described as follows: "They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than 90 years ago as the 'sporting theory of justice'. They are prescribed as aides to the attainment of justice" ( Jakamarra v Krakouer (1998) 153 ALR 276 at 284 per Gummow and Hayne JJ). 17 Prima facie a party is required to adhere to the time limits prescribed by the Rules. However, where there is a power to extend such time and there is good reason in the interests of justice to do so, the time limits may be extended. It is for the party seeking the extension to persuade the Court that it is in the interests of justice that it should be granted. Such persuasion will usually depend on the provision of an acceptable or satisfactory explanation as to why the time limits were not complied with. (Jakamarra v Krakouer, supra at 294 per Kirby J). 18 In Gallo v Dawson (1990) 64 ALJR 458, McHugh J considered an application for an extension of time in which to file a notice of appeal in a matter in which there would have been an appeal as of right had the notice of appeal been filed within time. In refusing an extension of time McHugh J stressed:

1. The grant of extension of time is not automatic;

2. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties;

3. The discretion to extend time should only be exercised in favour of an applicant upon proof that strict compliance of the Rules will work an injustice.

4. In order to determine whether there would be an injustice it is necessary to have regard to 'the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for the extension of time' and, where the application is for an extension of time in which to lodge an appeal 'the prospects of the applicant succeeding on the appeal'. 19 McHugh J in Gallo also stressed that it was: "necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' ..." (supra at p 459). 20 See also the authorities collected in Pace v Read [2000] NSWSC 823; Supreme Court, unreported 18 August 2000. 21 The summons was filed on 21 January 2003. The appeal should have been filed by 9 December 2002. No reason whatsoever has been proffered by the plaintiff to explain the delay in commencing proceedings. No explanation for delay per se is a compelling reason to refuse an extension of time. 22 Further, it is my view that this appeal is premature. The Tribunal Member has made a preliminary decision, namely to refuse the application to strike out the cross claim. The plaintiff is seeking to appeal an interlocutory decision. In Hall v Nominal Defendant (1966) CLR 423 at 442-5 Windeyer J stated that the question to ask is "does [the order] finally determine the rights of the parties in a principal cause pending between them", whether (at 444) "it results in a final determination of that action" or (at 445) "is the effect of the order to [establish] finally or otherwise the rights of the disputant parties - does it put an end to an existing dispute or existing action?" - see also Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 3) (1990) 21 NSWLR 200, 216; Debis v Allied Bellambi Collieries [2000] NSWCA 274. The relevant test of an interlocutory judgment is on the legal effect rather than practicality - see R v Cheng (1999) 48 NSWLR 616 at 618 per Spigelman CJ. The legal effect of the Tribunal Member's decision does not finally determine the rights of the parties nor does it put an end to an existing action. This appeal is premature and no reasons have been proffered as to the delay in bringing the appeal. For these reasons the appeal should be dismissed. 23 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed. 24 The court orders that:

(1) The decision of Tribunal Member Dr Stephen Smith dated 11 November 2002 is affirmed.

(3) The plaintiff's summons filed 21 January 2003 is dismissed.

(4) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

Last Modified: 02/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.