ALLEN v MERCER AND SONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 26 October 1992 [1992] NSWCA 6 APPLICATION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL — Application granted — Plaintiff to bear the costs of the application — Analysis of faults. Mahoney JA This proceeding comes before me on motion. The plaintiff seeks on order: "That the time for filing a Notice of Appeal herein be extended to expire seven days from the determination of this Motion". the circumstances upon the basis of which the application has been brought are set forth in detail in the several affidavits which have been filed in support of the motion. I shall summarise them to the extent only that it is necessary to understand the submissions made and the basis of my conclusions. The plaintiff was employed by Mercer and Sons Pty Ltd, the defendant. In 1981 he suffered injuries which, it is accepted, were caused by the negligence of the defendant. The circumstances of the injury and the nature of it are detailed at length in the summing-up of Finlay J to which I shall refer. The proceeding has been conducted on the basis that I may take from what was there said information as to the nature and extend of the plaintiff's claim. The summing-up discloses that on 10 April 1981 the plaintiff fell through an opening in the mezzanine floor of the defendant's warehouse in Finlayson Street, Wollongong. He landed on the concrete floor some ten feet below and apparently struck his arms and the back of his head on the sides of the opening as he fell through. (The summing-up states that the accident occurred on 10 April 1981. In his affidavit in support of the present motion, the plaintiff states that the accident occurred on 20 June 1981. Nothing turns upon this discrepancy). The plaintiff sued the defendant company for substantial damages. For reasons which do not appear, the proceeding did not come to trial until over nine years after the accident. It was tried before Finlay J and a jury on 21, 22 and 23 November 1988. The jury returned a verdict for the plaintiff for $17,000, an amount very much less than had been claimed by the plaintiff during the hearing. The trial judge deducted from the verdict worker's compensation that had been paid $8,936.99. To the balance $8,063.01 he added interest and directed judgment for the plaintiff for $16,075.01. The plaintiff was disappointed by the quantum of the verdict and instructed his then solicitors Messrs Marriott and Oliver to lodge a notice of appeal. It emerged during the hearing of the motion that a document entitled "Notice of Appeal" had in fact been lodged at the office of the Supreme Court in Wollongong in 23 December 1988 by Messrs Marriott and Oliver. The document, which is in the court file, is, in its form, a document in "the Common Law Division". Prima facie it was filed within the period of one month prescribed by the Rules for the filing of a notice of appeal. 2 UNREPORTED JUDGMENTS When it was lodged, no filing fee was paid. The court has been informed by the Registrar of the Court of Appeal and it has not been in contest that prior to 1 January 1989, the filing fee was less than $500; as from 1 January 1989, it had been increased to $500. Shortly after the filing of the document, on 17 February 1989, it was returned to Messrs Marriott and Oliver with a "Requisition" form indicating that no fee had been paid, that a filing fee was required, and that a or the notice of appeal should be lodged with a filing fee in the proper way. (I shall return subsequently to the significance of the filing of this document and the relevance of it to the argument in the present proceeding). What then occurred may be divided into three: what happened between the plaintiff and Messrs Marriott and Oliver between January 1989 and August 1989; what happened between August 1989 and | May 1991, when the plaintiff consulted Messrs Carroll and O'Dea; and what happened between 1 May 1991 and July 1992, when the present application was filed. There first ensued correspondence and discussions between the plaintiff and his then solicitors. On 9 January 1989 the plaintiff received from his solicitors a cheque for $7,435.21 being presumably part of the amount received from the defendant in respect of the judgment. Nothing was then said as to the fee for filing the notice of appeal. The moneys were expended by him to pay debts and to purchase a refrigerator. On 31 January 1989 Messrs Marriott and Oliver wrote to the plaintiff informing him that "... in order to lodge an appeal against the decision of Mr Justice Finlay in relation to your Supreme Court hearing in Wollongong, we require the sum of $500 being the filing fee to lodge such an appeal with the court. Accordingly we would be pleased if you would forward to us the sum of $500 at your earliest opportunity". The plaintiff said that he did not receive that or any other notification in relation to the payment of the filing fee. This, he said, was due to the break-up of the relationship with his wife and, presumably, his departure from his previous address. On 10 May 1989 the solicitors wrote to the plaintiff again advising "that we are unable to take the matter any further without" his instructions or arrangements for their costs. They asked for "your early reply". On or about 7 June 1989 the plaintiff spoke on the telephone with Mr David Crampton, a partner of Messrs Marriott and Oliver. He was, he said, for the first time advised that the notice of appeal filed had been rejected "due to the need for a $500 filing fee". He had, he said, been unaware of "any financial restrictions relevant to the lodgment of the appeal up to that time". On 8 June 1989 Messrs Marriott and Oliver wrote a letter to the plaintiff which stated the position at that time as follows: "We refer to your telephone conversation with the writer on 7 June 1989 and we advise that we had lodged a Notice of Appeal on 22 December 1988. We were informed by the Supreme Court Registry by way of telephone in late January 1989 that a Notice of Appeal attracts a filing fee of $500. We enclose herewith a copy of a letter dated 31 January 1989 advising you that we required the sum of $500 being the filing fee to lodge the Notice of Appeal. On 21 February 1989 the Supreme Court Registry returned our Notice of Appeal together with a Requisition stating that a Notice of Appeal attracts a filing fee of $500. We then endeavoured to contact you by telephone and we spoke to your de facto wife, Violet who advised that you had left her. We advised Violet that we were unable to lodge the Notice of Appeal unless we were paid the filing fee of $500. Violet advised us that she did not have URJ ALLEN v MERCER AND SONS PTY LTD (Mahoney JA) 3 that amount of money, that most of the settlement monies paid to you in January 1989 had been spent. She further advised that she had no idea of your whereabouts at that time. We again wrote to you on 10 May 1989 in the hope that you may have returned to your former address and we enclose herewith a copy of that letter. In those circumstances the Notice of Appeal was engrossed and remained on our file awaiting receipt by us of the sum of $500. We had no way of contacting you and the first communication that we had from you was your telephone call on 7 June 1989." The plaintiff gave oral evidence before me in support of the present motion. I conclude from what he there said and the evidence generally that by about June 1989 the plaintiff was aware that, in the view of those acting for him, no notice of appeal had been filed, that it was necessary for a notice of appeal to be filed if the matter was to proceed further, and that the filing fee for such a notice was $500. The plaintiff said that he was "quite angry, aggressive and frustrated with the jury's decision and... upset with the prospect of further extended litigation". He did not then have $500 available to pay the filing fee. He said that he went to see Mr Crampton to obtain the "file" in respect of his litigation. The documentary evidence suggests that it was not then obtained. In August 1989 the plaintiff consulted Mr W Beedles, a solicitor practising at Oak Flats. There then ensued a process of correspondence extending over the period until, on or about | May 1991, the plaintiff consulted his present solicitors Messrs Carroll and O'Dea. On 14 August 1989 Mr Beedles wrote to Messrs Marriott and Oliver requesting Mr Allen's file and enclosing an authority from him. A reminder was sent on 28 September 1989. On 4 October 1989 Messrs Marriott and Oliver informed Mr Beedles that the file was "in the possession of Messrs Marriott and Associates, Legal Costers for the purpose of preparing a Bill of Costs". It appears that it had been forwarded to that firm under cover of a letter of 16 August 1989. On 17 May 1990, Mr Beedles wrote again to Messrs Marriott and Oliver seeking the file "as my client still wishes to appeal". He asked for "your urgent attention to the matter". On 25 May 1990 Messrs Marriott and Oliver replied: "We refer to your letter of 17 May 1990 and note that it has been many months since we last heard from you. We do not wish in any way to impede your client's appeal, however, we would require an authority from the Legal Aid Commission before handing over the file". On 1 August 1990 Messrs Marriott and Oliver forwarded the file to another firm of solicitors Messrs Turner Whelan of Sydney with instructions to "produce the file and letter to the Court so that the Bill of Costs can be taxed". On 23 October 1990 Mr Beedles wrote again to Messrs Marriott and Oliver enclosing a letter from the Legal Aid Commission. In that letter, the Commission said, inter alia, that "... generally the question of release of a file by a former solicitor to a newly instructed solicitor is a matter for agreement between the two firms. The Legal Aid Commission is liable for the solicitor's client costs for work done under a grant of aid. This is stated in the letter of a grant of aid. No further particular authority is used". It is not clear whether anything further occurred between Mr Beedles and Messrs Marriott and Oliver prior to the plaintiff consulting Messrs Carroll and O'Dea on or about | May 1991. 4 UNREPORTED JUDGMENTS Between | May 1991 and 23 July 1992, when the present notice of motion was filed, Messrs Carroll and O'Dea took a number of steps directed in the main, it would appear, to obtaining relevant papers from Messrs Marriott and Oliver and to seeking legal aid assistance in respect of the application for extension of time. Details of what was done are set forth in the affidavit of Mr Harrison of 26 June 1992. On 2 May 1991 Messrs Carroll and O'Dea wrote to Messrs Marriott and Oliver stating that they were instructed "to lodge an application with the Court of Appeal for leave to proceed with an appeal out of time" and seeking "the papers" and the notice of appeal "apparently previously drafted". On the same date, they wrote to the Legal Aid Commission seeking "legal aid to cover the costs of applying for leave to appeal". By letter dated 20 May 1991 Messrs Marriott and Oliver forwarded to Messrs Carroll and O'Dea the original notice of appeal and the original statement of claim and confirmed "... that the rest of our file will be forwarded to you as soon as our account has been settled with the Legal Aid Commission". On 15 May 1991 Messrs Marriott and Oliver informed Messrs Carroll and O'Dea that their account had "not yet been finalised with the Legal Aid Commission" and that "upon a thorough search of our file we were unable to locate the Notice of Appeal... It is possible though that those documents have been mislaid, from the file being at our agents and then at the Supreme Court for some months. We will keep you advised as to the progress of the matter". There then ensued a series of exchanges, by letter and otherwise, referred to in Mr Harrison's affidavit in annexures "D" to "Z". In addition to obtaining papers from Messrs Marriott and Oliver, steps were taken for the purpose of obtaining the transcript of the summing-up of Finlay J and legal aid for the purpose of pursuing an application for an extension of time for filing the notice of appeal. Those documents extend over the period from May 1991 to February 1992. Ultimately, moneys were provided to obtain a copy of the summing-up: the Legal Aid Commission provided $600 for the purpose in or about February 1992. It appears that, before granting legal aid for the application, an opinion was required as to whether the application had appropriate prospects of success. Mr Harrison's affidavit records that advice was obtained for that purpose in May 1992 and that, on or about 23 June 1992, Mr Harrison had a "somewhat heated discussion with the claimant in respect of" that advice. The affidavit proceeds: "34. On or about 24 June 1992 I was instructed to proceed with an application for leave to appeal out of time by the claimant notwithstanding the fact that legal aid has not been granted and I agreed to advance to the claimant funds to cover the relevant filing fees." In this context, I come to consider whether the time for filing the notice of appeal should be extended. It is not in contest but that such an extension may be granted. The grant of it lies in the discretion of the court. The principles on which that discretion are to be exercised have not been in issue. The relevant factors in the present application have been canvassed in argument. Without limiting the matters to which reference is to be made, I shall refer to three of them: the reasons advanced to explain why the notice of appeal was not filed in time and why application for extension of time was not made earlier; the extent of the prejudice to the defendant if an extension be granted; and the likelihood of success of the appeal. (a) The explanation for the plaintiff's default: URJ ALLEN v MERCER AND SONS PTY LTD (Mahoney JA) 5 Certain things appear from what has occurred in this matter. The plaintiff at all times desired that an appeal be brought and he instructed his solicitors to bring an appeal. Those instructions were given at a time when it would have been possible for the appeal to be lodged within time. Moneys were, in the sense to which I have referred, available to pay the filing fee for the appeal. Portion of the judgment of $17,000 was paid to Messrs Marriott and Oliver and, in their view, part of this was available to be paid to the plaintiff for his own purposes. It does not appear why the plaintiff was not informed that portion of that money should be used to pay the filing fee for the notice of appeal or why, if the plaintiff had been so informed, moneys could not have been retained for the purpose. There is no explanation of why appropriate steps were not taken at the time when the original notice of appeal was lodged with the court registry in Wollongong. There has been no significant investigation before me of what happened at that time. The matter was raised by the court during the hearing of the application. The court does not know whether the document, though entitled "Common Law Division" was filed with the appropriate court officer to enable it to be received by the Court of Appeal Registry or what were the circumstances of its lodgment. It does not appear how it came to be received without the filing fee being duly paid. As far as appears from the evidence itself, the delay which took place between February 1989 and the plaintiff's consulting Messrs Carroll and O'Dea on 1 May 1991 appears to have occurred because of the process of dealing between the various solicitors. It appears to have been thought that, before a notice of appeal could be filed or an extension of time sought for the purpose, it was necessary to have "the file". It is not clear why this was so. The court will expect that, before being filed, notices of appeal be properly drawn so that amendments of them will not be required. But it will be conscious that special cases may arise. In particular, the court will, I think, be conscious that the absence of information may lead to some deficiency in the form of a notice of appeal and it may, in proper cases, accept those deficiencies and the need for amendment in order to avoid inappropriate delays. I am not satisfied that, by appropriate inspection of the court file or otherwise, it would not have been possible in the present case to draft a notice of appeal appropriate to ground an application for an extension of time without the whole of "the file" being available. But, however that be, the endeavours made to obtain the file were not pursued with the utmost diligence. As far as the evidence extends, this delay does not appear to have resulted from the personal default of the plaintiff. Between February 1989 and August 1989, the plaintiff appears to have left his then solicitors Messrs Marriott and Oliver without an address at which he could successfully be communicated with. To that extent, the passage of time may be attributed to him and not to the solicitors. The letters then written by them were proper letters addressed, I infer, to the address at which previously communications had been sent to the plaintiff. From August 1989 until May 1991, the resulting delay is attributable to those who were representing him or had represented him. I emphasise that my conclusion is based upon the evidence as it is before the court. It may be that a full investigation of the matter would disclose that the plaintiff contributed to or caused the delay. Experience in other matters suggests that persons involved in litigation sometimes delay communicating with their advisers when they should or that the advisers do not take steps which should be taken because the client is in default 6 UNREPORTED JUDGMENTS in providing instructions or paying fees. The evidence does not suggest that relevantly there was that default on the part of the plaintiff during this period. Further delay occurred between | May 1991 and the filing of the application on 23 July 1992. During this time Messrs Carroll and O'Dea did, inter alia, three things: they obtained sufficient information to draft the notice of appeal and provide a basis for the present application; they obtained a transcript of the summing-up of Finlay J and arranged for payment for that transcript by the Legal Aid Commission; and they endeavoured, ultimately unsuccessfully, to obtain from the Commission a grant of legal aid for the application for extension of time. The evidence before the court does not disclose any lack of diligence on the part of the solicitors in relation to these matters. But the procedures necessary for these three purposes took fourteen months and more. None of that delay was, in my opinion, occasioned by the personal default of the plaintiff. It is proper to emphasise in respect of these matters also that what I have said does not necessarily involve blame of those involved. The court must be conscious of the constraints upon the resources and accordingly the staff available to the public bodies involved. The resources available to private solicitors, the Legal Aid Commission, and the Court Reporting authority are limited by other calls upon public money. It may be that, with due diligence on the part of all concerned, the process of evaluating the plaintiff's claim for legal aid to pursue the present application could not be determined in less than twelve months or that a copy of the judge's summing-up could not have been obtained earlier. And the court must be conscious of the way in which business is conducted and the delays inherent in what elsewhere I have described as "the bottom of the pile" procedures: see "Delay... A Judge's Perspective" (1983) 57 ALJ 30 at 33; "Delay in the Courts: The Responsibility of the Lawyers" (1985) 59 ALJ 494 at 497-8. The time taken to obtain a copy of the summing-up and the funds to pay for it occupied a period between about 17 June 1991 and February 1992: the detail of the steps taken is referred to in Mr Harrison's affidavit. Ihave referred to these matters because, in my opinion, the time which passed between August 1989 and July 1992 appear to have resulted from the time taken for the legal exchanges between the solicitors and the legal authorities. Insofar as the period from 1 May 1991 to 23 July 1992 is concerned, that appears in the main to have resulted from what occurred in respect of the Legal Aid Commission and the obtaining of the court transcript. These matters are to be taken into account in assessing the plaintiff's application. Reference has been made on occasions to the extent to which delay has resulted from the acts or defaults of those acting for a plaintiff seeking an extension of time and the extent to which delay by them is to be taken into account in assessing the position of the plaintiff. It is, I think, too general a proposition to say that the plaintiff must bear the responsibility for the defaults of those acting for him. Distinctions are to be made. It is not necessary to attempt to make all of them in this proceeding. But it is relevant overall to distinguish between those delays which have resulted from the plaintiff's personal default and what has occurred as a result, for example, of the delays inherent in public procedures or necessarily involved in "the bottom of the pile" and other procedures which may properly be followed in dealing with legal matters. (b) Prejudice to defendant: In determining such an application as this and the significance of delay, it is of course important to know the effect of the delay upon the defendant. In this case, Mr Petty for the defendant company, was invited to indicate the effect which the URJ ALLEN v MERCER AND SONS PTY LTD (Mahoney JA) 7 delay has had upon his client. No evidence was called for the defendant. Mr Petty relied upon the prejudice generally incident to delay in a matter of this kind. That is of course to be taken into account. He did not refer to any particular delay or particular prejudice. That does not mean that the passage of some four years is not to be inferred to have an effect upon the defendant's capacity properly to defend on an appeal. But it is relevant that no particular matter of prejudice is involved. (c) The likelihood of succeeding on the appeal: Mr Cochrane for the plaintiff referred to the summing-up of Finlay J and submitted that the award of damages was appealably low. He did not suggest that there was any error of law in the summing-up or inadequacy in it. The counsel at the trial took no objection, in fact or in law, to what his Honour had said. The grounds of the proposed notice of appeal refer to matters such as the inadequacy of the damages, the weight of the evidence, and the like. The plaintiff's case was that he had suffered an injury to the right knee and to the left elbow and some difficulty with the soft tissue in the lumbar area. He claimed also an injury to the neck. His claim was that this had disabled him from working until about February 1992 and that thereafter he could not work or, alternatively, his capacity for work was much reduced. The amount claim for him at the trial was of the order of some hundreds of thousands of dollars. The case for the defendant at the trial was generally that the injuries were not severe and that by February or March 1982 the plaintiff had improved to the extent that he could resume the work he had previously been doing. The plaintiff's claim at the trial was dealt with under four main headings: out-of-pocket expenses, past economic loss, future economic loss, and general damages. The plaintiff claimed out-of-pocket expenses in excess of $8,000. The defendant conceded that he should be awarded $2,188. It contended that the balance of the out-of pocket expenses incurred did not relate to the accident and were not to be included in the verdict. The difference between the parties turned upon the assessment of the plaintiff's medical condition by February-March 1982 and thereafter. There was a substantial conflict at the trial between the plaintiffs account of his condition at relevant times and what, the defendant submitted, was supported by the medical evidence. It is sufficient to say that it was clearly open to the jury to conclude that, by February-March 1982 he was well able to return to work and that there was little residual effect from the accident. The late Dr Conacher, who saw and treated him, reported, in respect of his last examination on 22 January 1982, that "nothing of any significance has been found". His conclusion was that: "T do not think that he is 100% but I do think that he is 99% and should be able to work". At the trial, the plaintiff's evidence and the weight to be given to the medical evidence relied upon by him was seen as significantly affected by the view the jury took of his credibility and reliability. This was made clear during the summing-up. As recorded, the learned judge said: "What was significant, you may think, and was relied upon by the defendant in this case on his credibility and the reliability you would put to him was that he was asked questions that his claim for compensation was for the whole of the period right up to the present date. He said it was. That was read to you by Mr Hill yesterday. I will not re-read it to you again today. The significance was, of course, that thereafter he had to admit that he was last year convicted after pleading guilty to attempting to hold 8 UNREPORTED JUDGMENTS up a post office and was sentenced to 9 months gaol and served 6 months in gaol, so obviously was not a fact available to be working and no claim could be made for loss of employment during that period." In substance, in my opinion, the appeal would be likely to succeed only if it could be shown that, assuming that the jury disbelieved the plaintiff and accordingly discounted what he told to medical practitioners, the verdict of $17,000 was appealably inadequate. Therefore, in considering the out-of-pocket expenses to be taken into account on this basis, the plaintiff's recovery is to be limited to $2,118. The plaintiffs claim to past economic loss was treated in the same way. The plaintiff claimed economic loss for the whole of the period from the date of the injury, with only minor adjustments. The defendant's case was that he could properly be awarded only approximately $9,000, economic loss to the end of February 1982. This amount was, I think, not significantly in doubt in terms of the summing-up. The jury could properly have awarded only $9,000. The plaintiffs claim in respect of future economic loss was very substantial. But, on the defendant's case, no sum should be awarded for it. The jury could properly have adopted that view. The amount which properly had to be awarded for general damages was, in the same way, affected by the jury's view of the plaintiff's credibility. It was accepted that there was some injury to the plaintiff from the fall. Dr Conacher referred to soft tissue injuries to the back in the lumbar area. He referred to the x-rays taken on 13 April 1981 and noted there was "probably a loose body in the right elbow in good position". It was, as I have indicated, generally accepted that incapacity could be found between the accident and the end of February 1982. On the concessions made the jury would ordinarily have awarded $11,188 approximately for damages other than general damages. On the defendant's assumptions, they awarded $5,812 for general damages. The plaintiff's case would therefore be that such an award for general damages was appealably inadequate. In order to assess the significance of this factor for present purposes, it is not necessary nor, I think is it desirable that I express a final view upon this matter. I am conscious that the jury was strictly not bound to accept the defendant's concessions or the way it put its case. But the plaintiff could reasonably contend that general damages of $5,872 is appealably inadequate for injuries which, it was conceded, kept him out of the workplace for eight or ten months. There is, in my opinion, an arguable possibility that the verdict was appealably inadequate. Upon the basis of what I have said in relation to these factors and having regard to what generally was urged in relation to the application, I come to consider whether time for appeal should be extended. Iam conscious of the importance of ensuring that a judgment, once regularly obtained, be not disturbed. The High Court has, in a different context, recently reiterated the importance of this factor. On the other hand, I am satisfied that in the present case, if the plaintiff be not able to pursue the appeal, there will be injustice and apparent injustice. He has at all times desired to pursue the appeal. There is a reasonable prospect of the appeal succeeding. A notice of appeal was lodged but, on the evidence before the court, because of an error or blunder in the filing of it, it was not effective. The time which has elapsed in remedying the position has resulted not from serious personal default by the plaintiff but from the acts of those representing him and/or the procedures adopted within the law to do what they judged should be done. URJ ALLEN v MERCER AND SONS PTY LTD (Mahoney JA) 9 And, in the sense to which I have referred, the defendant has not pointed to particular or special prejudice other than that apt to result generally from the passage of time. Thave referred to apparent injustice. A distinction may be drawn between what properly understood are the requirements of justice in a particular case, and how the matter may be viewed by those who appreciate not the law's details or principles but only the results of its operation. I am inclined to think that, in the Justinian sense of justice, it was the plaintiffs due that his desire to appeal should have been given effect. There would, I think, be the apprehension, by the plaintiff and others, that in this case the result produced by the operation of the legal system was not just. I have referred to the filing of the document described as a Notice of Appeal on 23 December 1988. The document was apparently accepted by the Supreme Court Registry in Wollongong. It is arguable that, notwithstanding the failure to file it in the Court of Appeal Registry and the failure to demand and to pay the prescribed filing fee, the document operated to initiate an appeal. If a notice of appeal was filed in the Court of Appeal Registry in proper form, the fact that, by error, the filing fee was not demanded or paid would not, I think, prevent the filing of it having such an effect. But the circumstances not not been investigated and I shall not base my judgment upon it. I shall put aside what I have described as the apparent injustice of the case. I shall deal with the application by reference only to the actual injustice which, in my opinion, flows from the circumstances and generally the circumstances of the application. In my opinion, the time for filing the notice of appeal placed before the court should be extended to expire seven days from the date of this judgment. It is proper to record that, in my findings in this application, I do not make any finding of professional default or misconduct by those concerned. The parties have not dealt with those matters otherwise than by detailing the matters in the plaintiff's affidavits. If those issues were to be dealt with, it may be that the evidence would show that what was done involved no such default or misconduct. The full facts are or may not be before me. The costs of the present motion should be borne by the plaintiff.