Krishna v Lovett

Judgment 1McCOLL JA : This is an application for an extension of time to appeal from a judgment of his Honour Chief Judge Blanch given on 1 March 2010. In those proceedings the applicant, Mr Ben Krishna, and his late wife, Mrs Uma Krishna (together the plaintiffs), sued the respondents in respect of the construction by the latter of a drain on the plaintiffs' property. The cause of action was in trespass. The pipes were installed on the plaintiffs' land in or about August 2001. The proceedings were commenced in the District Court in 2006. 2It appears that when the matter came on for hearing before the primary judge in February 2010, it was agreed that the question whether the plaintiffs had consented to the pipes being installed on their land should be determined as a preliminary issue. His Honour resolved that issue in the respondents' favour and, accordingly, entered a verdict for the defendants and ordered the plaintiffs to pay their costs. 3It is common ground that the plaintiffs had an appeal as of right, there having been a verdict for the defendants. However, the judgment having been given on 1 March 2010, the applicant took no further step in terms of commencing any appellate proceedings until 26 August 2011 when he filed a summons entitled as one seeking leave to appeal but framed as if it was a notice of appeal. As is apparent, that summons, leaving aside procedural matters concerning its constitution, was manifestly out of time. Any appeal as of right should have been brought within 28 days of the "material date", 1 March 2010: Uniform Civil Procedure Rules 2005 (UCPR) 51.16(1). 4Accordingly, the primary question which this Court has to resolve, the summons having been amended to seek an extension of time within which to appeal, is whether that extension of time ought be granted: UCPR 51.16(2). 5The applicant's explanation for the delay in commencing any appellate proceedings was, as explained in his affidavit of 4 March 2011, the fact that following the delivery of judgment at first instance, his wife was diagnosed with cancer to which she finally succumbed on 31 July 2010. He said that he became very depressed following her death, and also that, in observance of Hindu tradition, he went into a mourning period which continued for 12 months. During that period, he said his lawyers advised him that they could not handle his appeal, which led him to have to seek new lawyers. Also during this period his nephew died in Fiji and he had to travel to that country for the purpose of the funeral and attendant mourning in respect of that gentleman's death. 6The applicant's assertion as to his depression was supported by evidence from his treating general practitioner, Dr Akinboye, and also by a certificate from a Dr Raju, who appears to have treated him for depression during his period in Fiji. In addition, there is evidence as to the Hindu practice of mourning in a statement from a Mr Ramend Shama. He explains that following a death Hindus engage in mourning for 16 days. Three months later there is another prayer ceremony and on the first anniversary of the death there is a large prayer ceremony requiring a week or two of preparation. 7The respondents led evidence to the effect that soon after the delivery of the primary judgment, the applicant's solicitors advised the applicant and his late wife that they had 28 days to lodge an appeal or to lodge a holding appeal (UCPR 51.8), the latter to give a greater time frame within which the appeal itself could be lodged. The evidence also discloses that during the 28 days constrained for filing either a holding appeal or an appeal, Mrs Krishna discussed the question of appeal with their solicitors and there were discussions as to the applicant and she being concerned about the time limit. Next, according to a file note of the applicant's previous solicitors dated 29 March 2010, which was the date on my calculation of the expiry of 28 days for taking a step within the rules in which to appeal, Mrs Krishna was told of counsel's advice that the prospects of success were not strong. The file note records that she advised her previous solicitors that they did not intend to appeal as it would, in effect, be a waste of money. 8The respondents' solicitor, Mr Sean Christian Radburn, has also sworn an affidavit in which he sets out the steps taken since judgment to seek to enforce the costs order made in the respondents' favour. It is unnecessary to set out the detail of all those steps. It is sufficient to note that on 27 July 2010 he received correspondence from the plaintiffs' previous solicitor seeking to settle the matter and making an offer of compromise as to the costs. Thereafter he took substantial steps to communicate with those solicitors concerning the matter of costs. He served a bill of costs in taxable form, he engaged process servers to serve the bill of costs on the applicants personally as well as upon their then solicitors, he filed an application for assessment of costs in the Supreme Court and, after he was advised on 1 November 2010 that the applicant's previous solicitors were no longer instructed in the matter, he sought to serve papers on him personally. During this period he was also engaged in correspondence with the costs assessor appointed by the Supreme Court to assess the costs. 9Following the issue of the costs assessor's certificate of determination, Mr Radburn took numerous further steps in an attempt to enforce the certificate, including having it registered in the District Court as a judgment or order and then seeking to enforce it by proceedings in the Brisbane District Court. He has also during the period of May through to June and July 2011 taken further steps in that application, as well as filing an application to issue a bankruptcy notice against the applicant in the Federal Court of Australia. A bankruptcy notice was duly issued and served on the applicant's present solicitors in August 2011. It was apparently following the service of that bankruptcy notice that the respondents were first advised that the applicant sought to set aside the enforcement warrant and also received notice of the issue of the summons seeking leave to appeal. 10It is apparent from Mr Krishna's affidavit of 11 October 2011, that as at December 2010 he had instructed solicitors to prepare an appeal. Advice as to that appeal was apparently received in or about March of this year. It included a notice of appeal in the form of the summons seeking leave to appeal. The applicant's solicitors sought to file those documents in March 2011, but the registry returned them because they were incomplete. It does not appear that any further steps were taken to seek to file the documents in an adequate form until the summons seeking leave to appeal was ultimately filed on 26 August 2011. 11It is apparent from the foregoing chronology that, as Mr Foley, who appeared for the applicant, accepted the respondents have been prejudiced by the delay and as Mr Grieve of Queens Counsel, who appeared with Ms Smith for the respondents, submitted, that delay has been egregious. 12It is also apparent, in my view, that the plaintiffs turned their mind to the question of whether an appeal should be brought within the time limited for that appeal and made a deliberate decision not to do so. The fact that it appears that the applicant has changed his mind about that decision following his wife's death does not detract from the significance of a deliberate decision having been made at the outset not to appeal. 13Mr Foley also accepts that in order to persuade the Court that an extension of time ought be granted, the Court has to take into account the length of the delay, the reason for the delay, the extent of any prejudice suffered by the respondent and, having regard to the admitted prejudice that they have demonstrated by reason of their evidence, that the proposed appeal has more substantial merit than only being fairly arguable: see Blackmore v Browne [2011] NSWCA 114 (at [18 - [19]) per Campbell JA referring to Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61. 14Mr Foley raised two key points concerning the substantial merit of the proposed appeal. The first was that the primary judge failed to make findings on essential issues concerning the agreement alleged to constitute consent to laying the pipes including the words used to constitute the agreement, who said what, when, where and what was the consideration. The second was that his Honour erred in making a material, but unfounded, adverse finding concerning the applicant's evidence that he had not had any discussions with his neighbours about drainage problems. 15As to the first point, it has to be borne in mind that the plaintiffs' action was in trespass. Accordingly, the key issue the primary judge had to determine was whether the plaintiffs consented to the installation of the relevant drainage pipes on their land. The defendants accepted that they bore the onus of proving consent. The primary judge approached the determination of the issues on that basis. 16There was a substantial issue at trial as to the date upon which the respondents asserted consent had been given. They contended that it had been given on or about 24 August 2001, following which the pipes were laid on 27 and 28 August 2001. The plaintiffs led evidence, which the primary judge accepted, that they had been in Brisbane during the period of 15 August 2001 and 31 August 2001. The primary judge had to then determine the question whether that objective evidence undermined the respondents' evidence concerning the question whether consent had been given. After carefully weighing the question of the inconsistencies in their evidence including the discrepancy as to date, his Honour concluded tha, notwithstanding those matters, he should accept their evidence that consent was given, even though it may not have been given on the date to which they referred. 17His Honour's judgment was an ex tempore one. It is not apparent that the case was put in the terms of an assertion that there had to be a contractual agreement of the sort to which Mr Foley now refers. In a case of trespass the existence of such an agreement would not be the issue; rather the question is whether there was consent to entry, whether or not it took the form, as Mr Grieve submitted, of an Ansonian contract. It is not apparent that the primary judge needed to make findings in the precise terms to which Mr Foley referred. It was sufficient, in my view, that his Honour, having accepted the respondents' witnesses' evidence, made a finding of consent. 18As to the second point, the primary judge found that the applicant had given evidence that he had not had any discussions with his neighbours about drainage problems. Mr Foley contended that that was a wrong finding of fact. His Honour did describe what he said was the applicant's evidence to the effect that although he had had dealings with his neighbours, there had been no discussion about drainage problems, as an unusual aspect of his evidence and concluded that it was simply not possible to accept it. That was not however, in my view, a material finding in terms of being dispositive. As I have said, his Honour concluded that he accepted the respondents' evidence that consent had been given. It is not apparent that his finding adverse to the applicant on the issue of discussions with the neighbours as to drainage distracted his Honour from the necessity to determine whether or not the respondents had discharged their burden of proving consent had been given. 19As to the applicant's other proposed grounds concerning the issue of whether agreement had been made on 24 August 2001 and the criticism of the finding in the respondents' favour because of the inconsistencies in their evidence, these were in my view all matters which the primary judge had to evaluate in the trial and reach such findings as he could having regard to his assessment of the demeanour of the witnesses and the inherent credibility of their evidence. In my view, the applicant has not demonstrated that there is a substantial prospect that he would persuade the Court that his Honour erred in any way which would enable the Court to displace such findings or the acceptance of their evidence. There is no incontrovertible evidence to the contrary. It would in effect, as Mr Grieve has submitted, be an Abalos appeal. 20In my view the applicant has not demonstrated that the case has a degree of being fairly arguable, let alone having the degree of substantial merit required to attract an extension of the time to appeal. The summons should be dismissed with costs. 21Mr Foley, before I reach a final decision, did you wish to say anything further about the issue of indemnity costs? 22FOLEY : No, your Honour. 23McCOLL JA : Did you, Mr Grieve? 24GRIEVE : No, your Honour. 25McCOLL JA: Mr Grieve submitted that having regard to the evidence, costs should be awarded on an indemnity basis. I would not however award indemnity costs, an order which may be made in exceptional circumstances and which should be made where a party's delinquency has caused a party to incur liability for costs beyond what could reasonably have been expected to incur in the litigation: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [44]) per Gaudron and Gummow JJ. While the delay in taking steps to appeal can be described as egregious, there were circumstances of an unfortunate nature to which I have referred, leaving aside what might have been Mrs Krishna's instructions to her solicitors, which may have had some bearing on the degree of enthusiasm with which the applicant pursued an appeal, and in due course the necessary application for an extension of time. In such circumstances I would not order costs on an indemnity basis. I propose that the summons be dismissed and the applicant to pay the respondents' costs. 26TOBIAS AJA : I agree with the orders proposed by the presiding judge for the reasons she has given. 27McCOLL JA : The orders of the Court therefore are as I have proposed.