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Judgment

1. BASTEN JA: The appellant, Denis Lovric, was arrested by police on 2 May 2015. He was held in custody for some two and a half hours before being released, having been charged with using offensive language, assaulting police and resisting arrest. He entered a guilty plea to the first charge, and was acquitted of the other two charges. He then brought proceedings in the District Court for damages against the State of New South Wales for assault and battery committed by the arresting officers, for unlawful imprisonment and malicious prosecution. On 13 April 2018 Judge P Taylor SC gave judgment for the defendant and ordered the plaintiff to pay the defendant's costs. The plaintiff sought to appeal from that judgment.
2. The State seeks to have the appeal dismissed as incompetent. The appeal required leave and was out of time. The appellant did not appear when the State's motion was listed for hearing on 2 December 2019. The matter was stood over to today and the appellant was advised of the new date and given notice pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.6, that the proceedings may be dismissed if he did not attend on that date. There has been no attendance. It is necessary to determine whether the proceedings should now be dismissed. In the circumstances to be explained that step should be taken.
3. First, it is clear that leave was required. In dismissing the District Court proceedings, Judge Taylor contingently assessed damages in the event that he was wrong, stating that he would have awarded (i) $10,000 for false imprisonment, (ii) $15,000 for the assault and $20,000 for malicious prosecution. He would not have awarded aggravated damages, but would have allowed $5,000 as exemplary damages for wrongful deprivation of liberty. There would thus have been a total judgment of $50,000 for the assault, unlawful imprisonment and malicious prosecution, if they had been established.
4. The significance of the contingent assessment of damages is that the amount assessed by the court was far below the threshold for an appeal as of right, which is $100,000: District Court Act 1973 (NSW), s 127.
5. The plaintiff did not file a notice of intention to appeal, nor seek leave to appeal, until a notice of appeal was filed on 5 July 2019.
6. Secondly, even the incompetent notice of appeal was long out of time. In an affidavit filed with the notice of appeal, Mr Lovric claimed that the State had "been aware since April 2018 of my intention to appeal the judgment, however the [State] agreed not to take a point regarding the timeframe in which I must file 'notice of intention to appeal' and subsequently commence appeal proceedings until such point in time as the abovementioned motions were complete."
7. The affidavit referred to two motions in the District Court in explanation of the steps taken between the judgment in April 2018 and the filing of the notice of appeal. One was a motion brought by him to have the judgment set aside: the appellant stated that it was "concluded" on 22 March 2019. The other motion was filed by the State seeking indemnity costs. Judgment for costs had been given on 13 April 2018; it seems likely that the State's motion sought to vary that order. In principle, neither motion affected the material date from which time to seek leave to appeal ran, which was when the judgment dismissing the claim was entered: UCPR, r 51.10(1)(b) and r 51.2(e), material date.
8. On 5 August 2019 the State filed a motion seeking to have the appeal dismissed as incompetent because leave was required and had neither been granted nor sought. Pursuant to directions made on 21 August 2019, Mr Lovric was given an opportunity to file a summons seeking leave to appeal. The Court directed that the summons be filed and served by 18 September 2019. By 28 October 2019, no summons had been filed. The solicitor for the State attempted to contact the appellant on four occasions between 9 September and 1 October 2019, without success or response. The appellant did not appear at direction hearings before the Registrar on 21 August or 28 October 2019.
9. There is no material before the Court from which it may be inferred that the amount in issue in these proceedings is, realistically, in excess of $100,000. Accordingly, the appellant needed leave to appeal and his appeal should be dismissed as incompetent. He has had ample opportunity to remedy the problem by filing a summons seeking leave to appeal, but has not done so.
10. There is a separate issue, relating to the need for an extension of time.
11. Counsel for the State accepts that before the District Court judge its counsel "conceded that it would treat the date of determination of the appellant's 36.16 motion as the date from which time would run, or the 'material date' within the meaning of r 51.2 of the UCPR, for the purpose of any appeal." The form and meaning of that concession is unclear. As a matter of fact, any appeal which was proposed would be brought from the final orders of the trial court, so that the time for appeal would run from the date on which those orders were pronounced or given: UCPR, r 51.2(e), material date. That date would not be affected by an unsuccessful attempt to vary the orders. (Why the application was not dealt with for 11 months is not revealed, but the delay is troubling.) More correctly, the State could, as a prospective respondent to an appeal, undertake not to oppose an order for extension of time, or even support the application, but it could not determine that the requirements of the rules were otherwise than as established by their proper construction.
12. In any event, even taking the material date as 22 March 2019, the notice of appeal was months out of time, and no extension of time for a summons seeking leave to appeal has been sought. If such a summons had been filed, the Court would no doubt have treated the State as being on notice of an intention to appeal from the date on which the notice of appeal was filed, rather than any later date upon which a summons seeking leave might have been filed. The same result applies and the applicant would have been out of time on any view.
13. Nor would an extension have been granted, on the material before the Court. In considering the grant of an extension of time it is useful to have regard to the factors identified in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55], namely (i) the length of the delay; (ii) the reason for the delay; (iii) whether the applicant has a fairly arguable case, and (iv) the extent of any prejudice suffered by the respondent.
14. In having regard to the length of the delay, it would be appropriate to take into account not merely the period during which the State accepted that time was running, but also the length of time since the hearing of the trial, and the possible reasons for the overall lapse of time. Having regard to the time limits prescribed by the rules, the delay could not be dismissed as insignificant. More importantly, no reason is apparent for the delay since March 2019, beyond the fact that the appellant is unrepresented. With respect to the third factor, it is rarely appropriate to give detailed consideration to the judgment below. However, as counsel for the State submitted, the claim for malicious prosecution had no real prospects of success. With respect to the other claims, whatever the strength of the appellant's case at trial, the prospects of an appeal would have to be considered against the findings of fact made by the trial judge which were substantially based upon the credibility and reliability of the oral evidence before him. Such findings are difficult to challenge on appeal: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ). Nor could it be said that there is any self-evident error in the judgment in the District Court.
15. Finally, there would be the question of any prejudice suffered by the respondent to the application. In substance the appellant's case must have been that the State was on notice for much of the time since the judgment that he intended to appeal and that the State is both well-resourced and acts in the public interest. Those factors may be conceded; nevertheless, in such a case there is a broader public interest to be taken into account. It is now four and a half years since the relatively brief incident which gave rise to the charges and the current proceedings. If an appeal were to succeed, there would need to be a retrial, given the need to overturn findings of fact. A retrial would not have been held in under five years after the events in question. There would, therefore, be prejudice to the proper administration of justice in granting an extension of time.
16. If it had been appropriate to allow at this late stage an application for leave to appeal, it may have been appropriate for the Court to stay its hand in upholding the objection to competency and dismissing the appeal. Because it is too late to entertain such a possibility, it is appropriate that the appeal be dismissed. The appellant must pay the State's costs of the proceedings in this Court.
17. The Court makes the following orders: 1. Dismiss the appeal. 2. Order that the appellant pay the State's costs of the proceedings in this Court.