Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Johnson v MacKinnon [2020] NSWCA 258 Hearing dates: 14 September 2020 Date of orders: 14 September 2020 Decision date: 14 September 2020 Before: McCallum JA Decision: 1. The appellant's application to vacate the hearing date is refused. 2. The appellant is to pay the respondent's costs of the matters heard today. Catchwords: CIVIL PROCEDURE – application to vacate hearing date Legislation Cited: Civil Procedure Act Uniform Civil Procedure Rules Cases Cited: Gersbach v Gersbach [2020] NSWCA 153 Category: Procedural and other rulings Parties: Leigh Diane Johnson (appellant) Ian Henry MacKinnon (respondent) Representation: Counsel: J Burnside, QC, S Lipp (appellant) T Dixon SC (respondent) Solicitors: Platinum Lawyers & Conveyancers (appellant) Nelson McKinnon Lawyers (respondent) File Number(s): 2020/07219 Publication restriction: None Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Date of Decision: 13 December 2019 Before: Stevenson J File Number(s): 2015/332497 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCALLUM JA: Two matters in these proceedings were referred to me by the Registrar. The first was the question of an extension of the time within which the notice of appeal may be filed. The second was an application to vacate the hearing dates presently scheduled for 10 and 11 November 2020. As to the first matter, the Registrar made plain that it would be a matter for the presiding judge to whom the matter was referred to determine whether to hear the application or to refer it to the full bench to be determined at the same time as the appeal. 2. The circumstances in which the appeal is brought are helpfully summarised in the parties' submissions. The proceedings were commenced in 2015. The appellant was the fifth defendant to the proceedings. The nature of the action was a representative proceeding under part 10 of the Civil Procedure Act 2005 (NSW). The claim arose out of investments on the part of the 154 members of the class in an allegedly fraudulent scheme perpetrated mainly by a person described by the appellant as "notorious fraudster", Mr Peter Foster. 3. The trial commenced on 5 February 2018. The submissions record that the trial proceeded over some 20 non-consecutive days. However, the respondent notes that only six of those days were evidentiary hearing, the proceedings being interrupted sometimes for many months as a result of the appellant's medical conditions. On 18 February 2019, the primary judge found that the appellant was involved in the fraudulent scheme and turned to consider the questions of causation and damages. On 28 November 2019, his Honour published a judgment on the remaining issues, entering judgment on 13 December 2019 against, among others, the appellant in favour of the lead plaintiff, who is now the respondent to the appeal. 4. The primary proceedings were then stood over to early February for the remaining members of the class to have their cases completed. However, on 9 January this year, the appellant filed a notice of intention to appeal. In accordance with rule 51.9(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW), she then had three months from the date of judgment to file a notice of appeal. 5. The notice of appeal was not filed until 2 June 2020, almost three months out of time. In the meantime, as has been emphasised by the respondent in submissions this morning, the remaining 153 members of the class are waiting to have the proceedings completed. In the circumstances, there is a respectable basis for the respondent's opposition to the extension of time within which the notice of appeal may be filed. 6. However, as noted on behalf of the appellant, one of the relevant issues in determining that question is the nature of the case sought to be advanced, which would comprehend the question whether the appeal was fairly arguable: Gersbach v Gersbach [2020] NSWCA 153 at [7] and [10] per Leeming JA. The appellant's submissions in reply highlighted three grounds in particular which, accepting what is put at its highest, would indicate that there may well be a fairly arguable appeal. Accordingly, I took the view that it was preferable for me not to determine the question of extension of time as a single judge sitting today, but rather to reserve that question for the full bench at the hearing of the appeal. 7. The second application was the application to vacate the hearing dates of 10 and 11 November. One basis for the application was that two days would not be enough time to hear the appeal in the (recently reached) opinion of senior counsel for the appellant, Mr Burnside QC. The Court was in a position to address that concern by offering a third hearing day on 12 November. In the circumstances Mr Dixon, council for the respondent, helpfully indicated that the respondent would accommodate a new timetable for the preparation of written submissions. Mr Burnside QC however indicated that the appellant could still not do justice to the case and be ready for the hearing on that basis. 8. The vacation of the hearing dates was opposed by the respondent in light of the substantial delays to date, the prospect of further delay if the adjournment were granted and the lack of any cogent explanation for those delays, together with the prejudice to the class members awaiting the completion of their cases in the primary proceedings. 9. The appellant's explanation for the delay is threefold. First, it was submitted that the restrictions imposed on all Australians as a result of the COVID-19 pandemic have produced delay. However, as noted on behalf of the respondent, the particular difficulties were not explained. It is difficult to find much support for the appellant's position on that basis. The Court's experience is that parties and legal practitioners have, for the most part, made a more or less seamless transition to the previously feared electronic litigation and that, if anything, the threat of the virus has encouraged a reluctant legal profession to embrace some of the efficiencies and advantages of virtual hearings. 10. The second explanation for the delay is that the appellant has faced financial difficulties. That is well supported in the material that she has filed. However, she has now resolved those difficulties and briefed Queen's Counsel. The question then becomes one of what can be achieved over the next few weeks until the listed hearing. 11. Probably the most compelling consideration put forward for vacating the hearing date was the complexity of the matter. Mr Burnside QC emphasised the volume of material he must master in order to prepare for the hearing. The evidence in support of the application went to the detail of identifying the number of pages of transcript and the number of pages that would likely be included in the blue book, as well as noting that there are some nine judgments that are likely to be involved in the appeal. Against that, it was noted on behalf of the respondent that, although there were more than 20 hearing days, there were, as I have already recorded, only six days of evidentiary hearing. 12. Although Queen's Council has only recently come into the case, the appellant has had the benefit of the assistance of junior council for some period. As noted by the respondent, the steps that have been taken while he has been involved in the case were not addressed in any detail in the evidence. There is a notice of appeal now filed which lists some 31 grounds of appeal. A consideration of those grounds suggests that no stone or any part thereof has been left unturned and that the process of preparing for the appeal will, if anything, be a process of distilling and culling the issues that have been identified to date rather than expanding the scope of the appeal. 13. Further, I note that although the grounds of appeal were so numerous, the submissions in relation to the extension of time application were able to highlight three particular grounds which may be expected to have some prominence in the argument of the appeal. 14. If the question of the time available for senior council to prepare for the matter is approached on the basis that it will be necessary for him to consider every page of evidence that was before the primary judge, four weeks for the preparation of submissions might seem ambitious. However, if the task is approached as one of requiring the appellant's legal representatives to distil the work done to date now with the benefit of the experience and confidence of Queen's Counsel who has been briefed, it would seem to be achievable. In my view, having regard to the series of delays that do fall at the feet of the appellant since the notice of intention to appeal was filed, it would be unfair on the members of the class to allow or condone further delay. 15. For those reasons, the application to vacate the hearing dates is refused. However, as indicated the matter will be listed for a third hearing date being 12 November 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2020