Piscioneri v Reardon [2016] ACTCA 33

Piscioneri v Reardon [2016] ACTCA 33 | Case summary | Zoe

His Honour: ...The Limitation Act says that a claim in defamation is not maintainable unless brought within a year. But that’s very different from saying you can’t file a statement of claim. Of course you can file a statement of claim. Ms Piscioneri: Well (indistinct) that if I filed it it would have been rejected. His Honour: Well, you didn’t even try, did you? Ms Piscioneri: At various times a long time ago I tried to add this defendant as a co-defendant, and I ... ... that was my understanding, that it would have been rejected if I had attempted to file it. His Honour: Well, that’s not based on any law, is it? Ms Piscioneri: I have attempted to file it, because I’ve made this application along with the-- His Honour: But that’s not an attempt to file a statement of claim. Ms Piscioneri: Well, it is. His Honour: No. You file the statement of claim by handing the original and two copies to the registry clerk and paying the fee. That’s how you file a document. You know that. You’re a lawyer, Ms Piscioneri. You must have filed many proceedings. Ms Piscioneri: Well, not these type, no. ... His Honour: ... You’re only out of time if the defendant pleads the statute of limitations and the court accepts it. You see the difficulty with the limitation defence – and it is a defence – and under the rules of pleading you don’t anticipate a defence. That defence has to be determined on the facts. I have no facts here. ... Ms Piscioneri: Well, I understand what your Honour is saying now, but certainly that wasn’t – I anticipated that if I did file it they would have said it was out of time and they would have rejected it. But I understand what your Honour is saying, and I note that this wasn’t raised in submissions in reply... His Honour: But I mean it seems to me there is no prejudice from you in simply filing and paying the filing fee and getting on with it. Ms Piscioneri: All right. I hear you. ... His Honour: ... But it seems to me, at the moment, that I had no jurisdiction to deal with the application that you’ve made. There is no provision I could find in the rules or in the Limitation Act that gave me the power to give you leave to file this application.

Section 37E(4) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides that an appeal may be brought against an interlocutory order of the Court constituted by a single judge only with the leave of the Court of Appeal. Under s 37J(1)(a) and (b) of the Supreme Court Act, the Court of Appeal may be constituted by a single judge for hearing and deciding whether there should be leave to appeal.
Pursuant to r 5312 of the Court Procedures Rules 2006 (CPR), an applicant for leave to appeal must file the application for leave and associated documents not later than seven days after the day that the interlocutory order is given, or within such further time as is allowed by the judge who made the interlocutory order or by the Court of Appeal.
The applicant submitted that the primary judge’s decision to dismiss the application for an extension of time pursuant to s 33 of the Limitation Act was a final decision because it finally determined the rights of parties in a principal cause between them.
Whether a judgment is an interlocutory judgment or a final judgment depends upon the legal rather than the practical effect of the judgment: Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 (Carr) at 248 per Gibbs CJ. The question is whether the consequence of the order, as made, finally determines the rights of the parties in a principal cause of action: Hall v Nominal Defendant (1966) 117 CLR 423 at 443 per Windeyer J, Carr at 248, Bienstein v Bienstein (2003) 195 ALR 225 (Bienstein). A strike out order is an interlocutory order although the practical effect of the order may be to finally determine the proceedings: McColley v Commonwealth of Australia [2014] ACTCA 21. The position is otherwise if the order also provides that the proceedings are dismissed: Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148. The law concerning interlocutory and final judgments was discussed extensively by the Court Appeal in Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48 (Arrow).
Consistent with this approach, it is well settled that the refusal to extend the time for bringing proceedings is an interlocutory decision not a final decision. In Bienstein the High Court (McHugh, Kirby and Callinan JJ) said at [25] that the refusal to grant an extension of time was not a final judgment because the unsuccessful party could make a further application for the same relief, although the application might have very little prospect of success. In Hodgson v Dimbola Pty Limited t/as Towers Removals [2010] ACTCA 22 (Hodgson) the Court of Appeal rejected an argument that a refusal to extend the time to commence proceedings was a final judgment and held that it was necessary to obtain leave to appeal such a decision.
Consequently, the applicant requires both leave to appeal against the interlocutory decision of the primary judge and an extension of time within which to seek leave to appeal. Extension of time and leave to appeal an interlocutory decision
Although rules of court that prescribe time limits should ordinarily be observed, they should not be allowed to become instruments of injustice: Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) [2008] 2 ACTLR 44 (Capital Property Projects) at [17]–[18]. The determination of whether to extend time because the rules might otherwise work an injustice involves a consideration of the history of the proceedings, the conduct of parties, the nature of the litigation, the consequences of granting or refusing leave, the prospects of success on appeal and the explanation for the delay: Capital Property Projects at [18]–[20] applying Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J.
The requirement for leave to appeal from an interlocutory judgment was discussed by Refshauge J in Capital Property Projects [23] and [24] and Arrow where, at [58], his Honour said:
The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows: a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases; b) a court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave; d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave; e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant; f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and g) it may be a factor favouring the grant of leave that: i) the decision involves a matter of public importance; or ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
In this case, important considerations are whether the decision of the primary judge “is attended with sufficient doubt to warrant its reconsideration” and whether the applicant would suffer significant adverse consequences if the decision was wrong. Although a decision to dismiss an application for extension of time may have very significant adverse consequences for the applicant, leave to appeal will be refused where the proposed appeal has no prospects of success, as was the case in Hodgson.

The order of the primary judge was made on 28 October 2014. Although full reasons were not published until 14 April 2015, at the hearing on 28 October 2014 the essential reasons were explained to the applicant and she indicated that she understood the explanation. The applicant’s statement that, for part of the 12 month period between the making of the orders and the lodging of the application for leave to appeal, she was distracted because she was attending to other litigation is inadequate to explain the lengthy delay of 12 months. The alleged defamation occurred in 2010, six years ago.
Nevertheless, if I considered that the applicant should be granted leave to appeal the primary judge’s decision because the correctness of that decision was open to dispute and, if wrong, would cause the applicant to suffer an injustice, then I would extend the time within which to seek leave to appeal.
The decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration. Nor would any error in the decision cause the applicant to suffer a significant injustice.
There is a fundamental difference between the suspension or postponement of a limitation bar (which occurs by statutory operation) and the extension of a limitation period (which may be decided by a court). For example, s 21B(2) of the Limitation Act requires a court to extend the limitation period in certain circumstances. On the other hand, s 33 provides that the time is not to be counted as part of the limitation period while certain facts apply, i.e. certain facts operate to suspend the running of the limitation period and thereby postpone the operation of the statutory bar. Relevantly, the fact that identity of the defendant is “deliberately concealed” suspends the running of the limitation period and postpones the operation of the statutory bar.
Section 33 of the Limitation Act is in similar terms to s 55 of the Limitation Act 1969 (NSW), except that the NSW statute uses the expression “fraudulently concealed” rather than “deliberately concealed”. In David Price, Gordon McGrath and Ian Davidson, Limitation of Actions Handbook - New South Wales (Butterworths, 1998) [55.35] the authors state:

The respondent sought indemnity costs “on the grounds that the allegations made by the (applicant) are both scandalous and fail to condescend to particulars”. Further, the respondent noted that the applicant, a former legal practitioner, had chosen to pursue an unmeritorious application which amounted to “an abuse of process”.
As stated above, these applications were not an appropriate vehicle for the respondent to assert that the allegations made by the applicant were “scandalous and fail to condescend to particulars”. The Court has found the applications to be unmeritorious, but not that they were “an abuse of process”.
The Court has a broad discretion in relation to costs. In determining the appropriate costs order, some allowance should be made for the difficulties faced by litigants in person. Such difficulties include both a lack of legal expertise and an emotional involvement with the proceedings which may cloud perspective. However, in an appropriate case, a court may make an indemnity costs order against a litigant in person. New South Wales courts have done so where proceedings were “obviously doomed to fail” and the litigant in person maintained the proceedings after having been told of that fact, or of a procedural defect in the formulation of their claim: Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 (Quach) at [10]. In determining whether to order indemnity costs, a relevant consideration is whether the party seeking the order for indemnity costs has notified the litigant in person of its intention to do so if the litigant continues to press the claim: Quach at [12].
In this case, the applicant’s claims were unmeritorious but, in the course of the proceedings, the respondent also made inappropriate assertions. The parties agreed that the hearing should be conducted on written submissions, and that agreement enabled the matter to proceed efficiently. The applicant was a litigant in person. She had practised as a lawyer, but it appeared that her emotional investment as a litigant in person had clouded her judgement. There was no evidence that, prior to serving his written submissions, the respondent had warned the applicant that, if she pursued the applications, then he would seek indemnity costs. In these circumstances, the respondent should not receive indemnity costs.

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