Saroa v Reckon Australia Pty Ltd

REASONS FOR JUDGMENT 1 This is an application for leave pursuant to O 52 r 15(2) of the Federal Court Rules to file and serve a notice of appeal out of time. The application was filed on 9 November 1999. Extension of time is sought in respect of orders made by Hely J on 23 September 1999 and 5 October 1999 in proceeding N666 of 1999. 2 The applicant commenced the proceeding before Hely J by acting for himself. On 7 September 1999 Hely J gave leave to the respondent to seek to have the proceeding summarily dismissed and made such a motion returnable on 23 September 1999. At the same time he referred the applicant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in accordance with O 80 r 4(1). Miss Dowling of counsel was appointed to appear for the applicant which she did. Annexed to the affidavit of Mr Saroa sworn and filed on 29 November and read in support of the present application is a copy of a letter dated 20 September 1999 from Miss Dowling to the applicant in which she said, amongst other things: "I consider that you should offer to discontinue the proceedings against the Respondent with each side to bear their own costs. You should note that the Respondent may seek its costs against you." 3 The applicant was present in court on 23 September when the motion came on for hearing before Hely J and a transcript of that day's proceedings is in evidence before me. Miss Dowling consented to the proceeding being dismissed but on her application the question of costs was reserved and stood over to 5 October, in order for the applicant to consider a proposed deed of settlement which affected that question. Mr Condon, who appeared for the respondent on that occasion, and who appears today in opposition to the application, made it clear that costs would be sought. 4 It appears plainly from the transcript that, on 5 October, while the applicant was not present in court, Miss Dowling made it quite clear, and his Honour was under no illusion, that the application for costs by the respondent was opposed. Indeed, Miss Dowling is recorded as saying what she could in opposition to the application. Mr Condon pressed his application for an order for costs, which his Honour ultimately made. Subsequently it appears there was correspondence between the solicitors for the respondent and the applicant about the order for costs, as a result of which the applicant tried to engage in correspondence with Hely J. This was, of course, quite improper as was pointed out to him in a letter from a Deputy District Registrar dated 22 October 1999. In that letter the Deputy District Registrar noted that: "… on 5 October 1999 the Court ordered that by consent the application be dismissed and costs were reserved to be heard on 5 October 1999." That was obviously a mis-statement because the order dismissing the proceeding was made on 23 September. The letter continued: "On 5 October 1999 the court ordered that you were to pay the Respondent's costs. If you are of the view that the Court made an error of law in its decision on 5 October 1999 you have 21 days to lodge an appeal." Mr Saroa says from the bar table that he understood that letter to mean that he had 21 days to appeal from the date of the letter, that is, until 22 October 1999. I think the plain meaning of the letter is clear, namely that the Deputy District Registrar was telling Mr Saroa that he had 21 days from 5 October to appeal against the costs order. 5 O 52 r 4(2) requires that an application such as the present one be accompanied by an affidavit showing (a) the nature of the case, (b) the questions involved, and (c) the reasons why leave should be given. Mr Saroa's affidavit of 29 November is deficient in all relevant respects. In circumstances where the proceeding was dismissed by consent, in the absence of some extraordinary evidence it would be a very unusual case where an order for costs did not follow the event. There has been no material put before me at all showing there will be any prospect of upsetting the order made by Hely J on 5 October. It follows, of course, that the affidavit is completely deficient in setting out any questions that might be involved in an appeal of such an order. 6 The only reason advanced, in effect, why leave should be given is that Mr Saroa is a litigant in person, and that he did not appreciate the fact that he had 21 days in which to appeal against the costs order. I am not prepared to make such a finding in his favour in any event, especially in the light of the letter from Deputy District Registrar which, no matter that it may have mis-stated the date of the order dismissing the proceeding, stated quite clearly the date of the costs order and that 21 days was the period for an appeal from that order. Indeed, it is difficult to think how it could be stated more plainly. 7 Mr Condon opposes the application today not on any basis of delay but on a proper and substantial basis. He refers me to the authorities in relation to considerations that apply in applications for an extension of time such as this including Jess v Scott (1986) 12 FCR 187 in which the Full Court of this Court (at 195) rejected a submission that O 52 r 15(2) required that the words "for special reasons" should be given a stringent interpretation, and held that the cases established that leave to appeal out of time is to be determined by the Court's view of the demands of justice in accordance with a broad judicial discretion. Since that case the discretion to extend time has been considered in a number of cases, notably by McHugh J in Gallo v Dawson (1990) 64 ALJR 458, particularly in the passage at 459D, which statement was applied by Mason CJ in Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678 at 679F. There is also the more recent authority of Jackamarra v Krakouer (1998) 72 ALJR 819. 8 Those cases make clear that, in order for the Court's discretion to be exercised in favour of the applicant, an extension of time must be necessary in order that justice be done between the parties. That requires an assessment of the prospects of success of any appeal. There is absolutely nothing whatsoever to indicate any prospects of success in the present case. Indeed, I regret to say that there is a quite disgraceful tone to some of the submissions Mr Saroa has made suggesting that in some way his counsel acted contrary to instructions. There is no evidence before me at all to support that submission and, as Mr Condon points out, the transcript shows that counsel very properly made all possible submissions on 5 October in relation to the question of costs. It is unfortunate that counsel appearing for the applicant pursuant to a referral under Order 80 arrangements should be subjected to such unfair criticism. 9 The question of delay in this case is only a matter of days. However, that is neither here nor there. I am firmly convinced that the appeal would be totally fruitless and, in the circumstances, there is no reason why the discretion should be exercised in the applicant's favour. Accordingly, the application is refused and the applicant is to pay the respondent's costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.