FLORA CHIAVERINI v GORDON HOCKEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 13 December 1990, 13 December 1990 [1990] NSWCA 40 TIME — appeal — from District Court — delay of 12 weeks after judgment — reasons not available — application for extension of time within which to appeal — observations by Kirby P on the desirability of filing within time a notice of appeal which may later be amended when reasons of the trial judge are available. APPEAL — time for lodging — delay — circumstances of difficult question of law and part of time explained — held: Time should be extended but solicitor should pay costs occasioned by application. LEGAL PRACTITIONERS — costs — order against client — court expenses — expectation that solicitor in default will pay such costs. Supreme Court Act 1970. Kirby P Flora Chiaverini (the claimant) brought proceedings in the District Court in respect of two motor accidents. She was not directly involved in either. But she claimed that she had suffered a depressive illness as a consequence of them. She sought to bring her claim within the limits of a claim in nervous shock. See eg Chester v Waverley Corporation (1939) 62 CLR 1; Mt Isa Mines Pty Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549. The claim came before Gallen DCJ on 1 and 2 August 1990 successively. In each case, his Honour gave judgment in favour of the opponents now before this Court. Mrs Chiaverini wishes to appeal to the Court of Appeal. However, her documents were filed on 22 October 1990 in circumstances which I will have to describe. Accordingly, instead of bringing her appeal within the 28 days provided by law, she has brought proceedings some twelve weeks after the judgment which she seeks to challenge in the Court. The circumstances which occasioned this delay have been explained in evidence placed before the Court by Ms Mohini Indira Gunesekera, solicitor for the claimant. Ms Gunesekera was not present in the District Court on either | or 2 August 1990. I am unaware as to whether anyone was present for the claimant at the time when Judge Gallen delivered his judgment. However, some time after judgment and with a view to considering an appeal, Ms Gunesekera secured the notes of the judgment which had been taken by the representative of the Government Insurance Office, which stands behind the opponents. Ms Gunesekera states that, on 8 August 1990, she briefed counsel to advise on the prospect of appeal. That was obviously a sensible course, having regard to the difficulties which are raised by this area of the law. The difficulty which counsel then faced is understandable as the transcript of the reasons for judgment of Judge Gallen was not available to him. Those reasons were sought. However, they were not received until 14 September 1990. The papers, including the settled Notice of Appeal, were not sent to Mrs Gunesekera by counsel until 11 October 1990. She was then on the eve of her departure for Sri Lanka on 13 October 1990. However, before her departure she 2 UNREPORTED JUDGMENTS gave instructions to her law stationers to proceed to file notices of appeal as quickly as possible. She anticipated that the notices would be filed on 15 October 1990, the following Monday. AS it transpired, the documents were presented to the Registry of the Court but rejected. Consequently, they were not filed until 22 October 1990. This was after Ms Gunesekera had returned to Australia and was able to give the law stationers the necessary additional information to be included in the documents, to render them acceptable to the Registry. One other fact must be mentioned. On 13 September 1990 - that is to say, the day before the transcript of the judgment was received - according to the affidavit of Ms Gunesekera, a letter was sent to the solicitor for the Government Insurance Office (representing the opponents), informing that office that it was the intention of the claimant to appeal. That intention had, therefore, been formulated prior to receipt of the written transcript of the judgment, presumably upon the basis of the notes which had been supplied earlier to Ms Gunesekera by the solicitor for the Government Insurance Office. It seems that those notes were considered sufficient to secure the instructions of the claimant, but not to provide counsel with the necessary information with which to settle the notices of appeal. The difficulty which is faced by parties wishing to appeal in obtaining the transcripts of judgments of the courts and tribunals appealed from is notorious. It has resulted in a degree of flexibility on the part of this Court in extending the time for appeal which would have been unthinkable in earlier times. The Court undoubtedly has the power under the Rules of the Supreme Court (and possibly, sometimes, by its inherent power) to waive delays in the commencement of process. However, in every case it is incumbent upon the application to show that sufficient grounds have been made out to invoke the discretion to extend time. It should never be assumed that extension of time is simply there for the asking. Statutory provisions and the Rules of Court providing for time limits are designed so that parties can order their affairs in the knowledge that a decision of a court or tribunal is final, and cannot be appealed. In this case, the appeal is a substantial one. what is not explained is why no step was taken by Ms Gunesekera to file within time a protective notice of appeal. Such protective appeals, expressed in general terms, are frequently filed having regard to the well known difficulty of obtaining transcript of the formal reasons of the court or tribunal appealed from. It was not done here. In earlier days, when the prospect of securing an extension of time from the Full Court or the Court of Appeal was considered remote, the filing of a protective notice would have been the invariable practice of the legal profession. In the new remit of greater flexibility in the extension of time, a degree of laxity has arisen. The Court will have to consider what should be done, to ensure that times laid down by statute or by the rules are more faithfully observed by the profession. In this case, the special features of the matter which the claimant wishes to agitate in the appeal are such that I consider it was reasonable that counsel's opinion should have been obtained before the appeal was finally launched. I also consider that it was reasonable that counsel should wish to peruse something more than notes of the opponents' solicitor, and would seek a written transcript of the Judge's reasons for decision. Perhaps counsel considered that a covering notice of appeal had been filed. But it had not. A prudent lawyer would have advised and taken that step. URJ FLORA CHIAVERINI v GORDON HOCKEY (Kirby P) 3 The further delay occasioned by the absence of Ms Gunesekera in Sri Lanka in October 1990 has been explained today. It adequately excused the delay which arose from 13 October, when she gave instructions to her law stationers, until 22 October when the notice of appeal was finally filed. Accordingly, the relevant period to be considered is that following the expiry of the time for the filing of the notice of appeal (which was 30 August 1990) until instructions were given to the law stationers on 13 October 1990. That is a period of about six weeks. The time lost is, in my opinion, significant. Without the explanation of the additional time, I declined on Monday last to extend the time. Having regard to the nature of the case which the claimant wishes to raise in the appeal, and all of the circumstances that have been revealed to me today, I am not of the opinion that the claimant should be put out of court. The opponents have not suggested any special prejudice. In the very fair submission of their counsel, they have drawn attention to features of the case but they have not sought otherwise to indicate that an extension of time would cause any prejudice which could not be cured by an appropriate order as to costs. In extending time, I propose to make such an order as to costs against the claimant. However, I wish to make it plain that it would be the expectation of the Court that the costs occasioned by the delay should not be borne by the claimant herself but by her solicitor. Under legislation which has recently been proposed, a court will be entitled to make orders to that effect in certain circumstances. That legislation is not yet in force. However, I would expect that the solicitor for the claimant would bear the costs which have been occasioned by what has been demonstrated in the court today and in the solicitor's presence to have been an insufficient attention to the interests of the claimant in this appeal. I realise that in the case of suburban solicitors there will be difficulty sometimes in attending court in the city. However, it is surprising to me that nobody appears to have been present to protect the claimant's interest when judgment was delivered by Gallen DCJ in such a way as to take notes of the judgment so that these could be supplied to the solicitor for the purpose of securing instructions about an appeal. There was then a failure to attend to the filing of a protective notice of appeal, as was hitherto the practice and should again become the practice. There was then a languid attitude to the passing of time, which is simply unacceptable to courts which must themselves attend to the timely consideration of cases before them. For the reasons which I have given, the orders which I make, exercising the powers of the Court of Appeal under s46 of the Act are: 1. I extend until tomorrow, Friday 14 December 1990 at 4 pm the time within which the claimant may file appeals within time against the orders of Gallen J of 1 and 2 August 1990; and 2. Lorder the claimant to pay the opponent's costs of an incidental to the Motion for extension of time. I repeat that I expect that such costs will be borne by the solicitor who has appeared before me today and who is present in Court as I pronounce these orders. Counsel for the Applicant: JA McCarthy QC / J Pollak Counsel for the Opponent: TJ Christie Solicitors for the Applicant: Gunesekera Barone Cavanagh Solicitors for the Opponent: Government Insurance Office of New South Wales