HIS HONOUR, JUDGE RODNEY GREAVES, LIQUOR LICENSING COURT

Practice and Procedure - Delay - Extension of time - Dismissal of appeal for want of prosecution - Appellants' solicitors responsible for delay - Appeal not devoid of merit

Birkett v James [1978] AC 297

Boomalli Ltd v Hake [1985] WAR 7

Cummings & Anor v Davis & Anor [2000] QSC 158

Mantegna v Seafeast Sales Pty Ltd, unreported; SCt of WA; Library No 950497; 24 August 1995

Murcia Holdings Pty Ltd v City of Nedlands [2000] WASCA 275

1 MALCOLM CJ: In my opinion the application by the third respondent to dismiss this appeal for want of prosecution should be dismissed and the application by the appellants for an extension of time within which to enter the appeal for hearing should be granted. I have reached these conclusions for the reasons to be published by Ipp J with which I agree.

2 PIDGEON J: I agree with the reasons of Ipp J.

3 IPP J: On 24 March 2000, Wheeler J dismissed an application by the appellants whereby they sought an order nisi for a writ of certiorari. By the writ of certiorari the appellants sought to quash a certificate issued on 24 September 1997 by the first respondent pursuant to s 40 of the Liquor Licensing Act 1998 and a tavern liquor licence granted on 17 April 1998 by the second respondent to the third respondent.

4 Briefly, the facts giving rise to the application for the writ of certiorari were as follows. In 1996 the building that was situated on Lot 8 Ocean Drive, Bunbury was used as a restaurant and the premises were zoned for "restaurant use". In that year, the third respondent purchased the property in question. In 1997 the third respondent applied for a tavern licence in respect of the premises. On 24 September 1997, the first respondent certified that the use of the premises "as a licensed premises ... will comply with all relevant planning laws" and that "it is known that the authority will give that consent subject to the following probable conditions/restrictions; nil". At the same date, the first respondent's town planning scheme provided that the premises were zoned "special use" and that the permitted use was "restaurant" only. Accordingly, the content of the s 40 certificate was wrong. Nevertheless, on 17 April 1998, the second respondent granted the third respondent's application for a tavern licence.

5 Thereafter, the appellants applied for the order nisi (which I have mentioned) relating to the writ of certiorari quashing the s 40 certificate and the tavern licence. The application came before Wheeler J who held that it was reasonably arguable that the challenge to both the s 40 certificate and the tavern licence should succeed. Nevertheless, her Honour dismissed the application for the order nisi on the grounds of delay.

6 The delay on which Wheeler J relied requires some elucidation. As I have mentioned, the tavern licence was granted on 17 April 1998. On 3 May 1999, the appellants' solicitors advised the appellants that it would

be possible to attack the grant of the tavern licence on the basis of the inaccuracy of the s 40 certificate. On 25 October 1999, the appellants applied for the order nisi. They sought to explain part of the delay of almost six months between the receipt of the advice and the application for the order nisi by the fact that over a period of three months to 25 October 1999 there were changes in the ownership of some of the appellants and in the ownership of certain other hotels, the licensees of which contributed towards the cost of the proceedings. The appellants submitted that these changes "may have led to some revisiting of the desirability of the present proceedings and of the manner in which they would be funded". No explanation for the balance of the delay was proffered.

"The most difficult question in relation to the applicants' delay for present purposes stems from the 6 months from 3 May 1999. The applicants were plainly remiss in not taking earlier steps once advice was received, and the reasons advanced in relation to changes of ownership go only part way to explaining that delay, and explain in part only 3 months of a period between receiving advice in May and bringing these proceedings in October."

"The applicants' 'account' of the final 6 months of delay (assuming, without deciding, that the earlier periods have been satisfactorily explained) is partial, perfunctory, and vague. I am not satisfied that that delay has been accounted for, and I am therefore unable to grant the order sought."

8 Following the dismissal of the application for the order nisi, a further delay ensued. On 14 April 2000, the appellants filed a notice of appeal against her Honour's decision and on 1 June 2000 filed a notice of motion for leave to appeal. On 14 June 2000, the appellants filed a draft appeal book index. According to the Rules of the Supreme Court 1971, the appeal should have been entered by 7 July 2000. Entry for appeal was not so effected. The parties were required to attend on the Registrar on 15 August 2000 to settle the appeal book index. The appellants did not attend and the appeal book index was not settled. A further appointment to settle the appeal book index was fixed on 1 September 2000 but, again, the appellants failed to attend.

9 The appellants now apply for an extension of time to enter the appeal for hearing and the third respondent applies to dismiss the appeal for want of prosecution.

10 It is unnecessary to go into any further detail in relation to the delay since 14 April 2000, save to say that it was not deliberate but was caused by the neglect of the appellants' solicitors in Perth and in Bunbury. It is true to say that, during the relevant period, Mr Norton, the person who had the carriage of the proceedings on behalf of the appellants, did not communicate with the appellants' solicitors for six months. Mr Norton says that he was unaware of any delay in relation to the progress of the appeal. In particular, he says that he was not aware of any delay "in relation to the non-attendance of my solicitors or their agents before the Registrar to settle the appeal book index". He says that he had instructed the appellants' solicitors "to prosecute the appeal with due diligence and at no stage have those instructions changed". I accept that it was remiss on the part of Mr Norton to have refrained from being in communication with his solicitors for a lengthy period, but that was not a material factor in the delay. In my opinion, to all intents and purposes, the responsibility for the delay as from 14 June 2000 when the draft appeal book index was filed must be attributed to the appellants' solicitors. As in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 206:

"There is nothing to suggest that the appellant, having left the matter to its solicitors should have known that the steps to prepare the index and the appeal books had been overlooked, or that the conduct of its officers is in any respect to be weighed against its exercise."

11 The respondents submitted that the previous delay of six months (from May to October 1999) is a relevant factor and a delay of more than 12 months must be taken into consideration in regard to the present applications. I accept this submission but would regard the delay since the filing of the appeal book index as being of paramount importance. After all, but for the latter delay, there would have been no need to apply for an extension of time within which to enter the appeal for hearing and the third respondent's application to dismiss the appeal for want of prosecution could not have been made. I also take into account the fact that, as I have pointed out, Wheeler J considered that part of three months of the earlier delay was explained satisfactorily by the appellants.

12 Part of the initial delay of six months is to be attributed to the appellants. There is no suggestion that the delay was intentional or contumelious. Wheeler J [29] held that "the applicants have not 'slept on their rights'". Moreover, and importantly, the delay has not caused the third respondent any material prejudice. Wheeler J pointed out that there was likely to have been some expenditure incurred by the third respondent as a result of it obtaining the tavern licence, and before it was made aware of the appellants' assertion that the premises could not be used for the purpose of a tavern. Her Honour, however, held that the prejudice of this nature was difficult to quantify and was not substantial. It was also submitted on behalf of the third respondent that there was ongoing prejudice caused by stress suffered by Mr Gardiner, a director of the respondent, as a result of the delays in the case. Reference was made to a doctor's certificate which referred to a certain illness from which he was suffering and stated that:

"Mr Gardiner's condition has dramatically worsened over the last year or so and I am sure this situation has been exacerbated by the stress of legal proceedings related to his liquor licence."

The problem for the third respondent, however, is that there are other legal proceedings pending in regard to the liquor licence that may be thought to be of a more serious nature than the present and there is nothing to suggest that the termination of these proceedings will in turn result in the cessation of the stress to which he is presently subject.

13 In all the circumstances, and particularly having regard to my conclusion that the material responsibility for the delay is that of the appellants' solicitors, I do not think that the delay should preclude the appellants from being able to argue the appeal: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 543 per Kirby J.

14 I turn now to the merits of the application for the writ of certiorari. In Jackamarra v Krakouer Brennan CJ and McHugh J said (at 521):

"Cases such as Palata [Investments Ltd v Burt & Sinfield Ltd (1985) 1 WLR 942 at 946 which related to an application for an extension of time for instituting an appeal] are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, 'must be investigated and decided in the manner appointed' Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713 at 720 per Dixon J. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out... But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions."

15 As I have mentioned, the application for the order nisi was dismissed solely on the grounds that there had been a delay. Her Honour found that the appellants' case was otherwise reasonably arguable. The appellants submit that her Honour erred in failing to take into account various discretionary factors such as the strength of the appellants' case on the merits and the public nature of the duties that are said to have been breached. It would be undesirable at this stage to express any firm view on the argument so advanced. I am not satisfied, however, that the appeal is so devoid of merit that it would be futile to extend time.

16 Accordingly, I would uphold the application for an extension of time to enter the appeal for hearing and would dismiss the application to dismiss the appeal for want of prosecution.