New South Wales Court of Appeal CITATION : Atkinson v Mullrai Pty Ltd & Ors: Carlisle v Mullrai Pty Ltd & Ors [1999] NSWCA 374 FILE NUMBER(S) : CA 40583/99; 40436/98 HEARING DATE(S) : 27 September 1999 29 September 1999 JUDGMENT DATE : 29 September 1999 PARTIES : Melanie Gai Atkinson v Mullrai Pty Ltd, Bruce Mulligan, Rainee Veronica Mulligan Melinda Bronwyn Carlisle v Mullrai Pty Ltd, Bruce Mulligan, Raineee Mulligan JUDGMENT OF : Priestley JA at 1 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 400011/95 CLD 400074/96 LOWER COURT JUDICIAL OFFICER : His Honour Justice Newman COUNSEL : Claimants - B. Toomey QC, J. Singh Opponents - R. Cavanagh SOLICITORS : Claimants - Fallon Safetly Opponents - Henry Davis Yorke CATCHWORDS : Applications for extension of time to appeal. DECISION : Applications granted THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40583/99 CA 40436/98 PRIESTLEY JA Wednesday, 29 September 1999 ATKINSON v MULLRAI PTY LIMITED & ORS CARLISLE v MULLRAI PTY LIMITED & ORS 1 HIS HONOUR: Before the court there are two notices of motion for extension of time to appeal. The cases giving rise to these notices of motion arise from an accident that happened on 25 October 1991. The two applicants for extension of time brought proceedings for damages for negligence arising from that accident in which they were both injured. One plaintiff was Melinda Carlisle, the other Melanie Atkinson. Both were aged sixteen at the time of the accident. Their two cases were heard together by Newman J on 28, 29 and 30 April and 1 May 1998. Pursuant to reasons published on 2 June 1998, he entered judgment on that day for the defendants. Both unsuccessful plaintiffs wanted to appeal. Their solicitors advised them against it. I will summarise first what happened in Miss Carlisle's case. 2 Following the advice by the solicitor, Miss Carlisle's mother seems to have undertaken the main burden of carrying on the proceedings. She was in touch with her daughter who was living a long way away from the mother's place of residence and between the two of them they brought about the following happenings. The mother asked the solicitor to lodge a holding appeal and he did this by lodging a notice of appeal without appointment on 24 June 1998 which was served on 29 June 1998. 3 The mother and the daughter then began a search for another solicitor and also set about obtaining Legal Aid. Their efforts to get Legal Aid were unsuccessful. A letter in evidence shows that one of the bases of the refusal of the grant of Legal Aid was the opinion of the Legal Aid solicitors that there were no real prospects of success in the appeal. 4 A new solicitor was found in September 1998 and the first communication with her was by Mrs Carlisle on 22 September 1998. That solicitor naturally enough wanted to see some papers before advising upon what if any steps should be taken in pursuance of an appeal. The papers were still with the original solicitor whose costs had not been paid and those costs included a number of expenses over and above the solicitor's own professional costs. Eventually an amount of $10,000 was paid to the solicitors, apparently in part payment of their account, in return for which the papers were released. 5 The new solicitor, who remains the solicitor for both the applicants for an extension now before me, was Miss Fallon. In one of her affidavits, which was in evidence before me, she said that she obtained the file from the previous solicitors on 21 October 1998. She then discovered that the three months' holding period obtained by the filing of the notice of appeal without appointment had expired. She then sought counsel's advice. Counsel indicated that a transcript of the evidence before Newman J should be obtained. That transcript was going to cost $1,404. Miss Carlisle was not in a position to provide this money and neither were her parents, who had been the source of the funds to get the papers from the solicitors. An application for waiver of the cost of the transcript was made and approval of that waiver was granted on 1 February 1999. Miss Fallon received the transcript on 18 March 1999. 6 An application had been filed in March 1999 for what was said to be a reinstatement of the appeal. Everyone appears to have taken that application as an application for extension of time, which seems to me to be a reasonable interpretation of the way in which the notice of motion was worded. 7 The matter came on before the Registrar on 12 April. The application was dismissed on the basis that there was insufficient evidence to explain the delay and no grounds of appeal were before the Registrar. Upon enquiry from counsel, I have been led to understand that it was plain from the way in which the proceedings were dismissed that the possibility was left open for a further application to be made if the defects the Registrar had pointed out were remedied. This led to the present two applications which were lodged on 3 August 1999. 8 There was a communication made to the solicitors for the defendants by letter dated 25 May 1999. That letter referred to a letter dated 28 April 1999 from the solicitors for the defendants to the solicitors for the present applicants. The letter of 28 April had been a letter indicating that the defendants' solicitors would shortly forward their memorandum of costs in view of the order for costs in the defendants' favour that had been made by Newman J. The letter of 25 May 1999 said: " As you are no doubt aware, it is our clients' intention to appeal the decision of his Honour Newman J. Whilst this does not negate the liability that our client has for your costs and disbursements, it is a matter which in our opinion ought to be dealt with prior to your pursuing an action against our client for your costs and disbursements. " 9 The letter went on to make it clear that the solicitors for the present applicants were not intending to be difficult about the costs but were proposing that the final disposition of any costs consequences of the cases should await what happened " until after a further application is made to the Court of Appeal for leave to appeal. " 10 Then a further letter was written by the solicitors for the present applicants, dated 21 July 1999, to the solicitors for the defendants, referring to a letter dated 16 July 1999 from those solicitors and noting that the solicitors for the applicants were currently in the process of issuing a summons for leave to appeal in the Court of Appeal. 11 As I have said, the applications were filed on 3 August 1999. They are applications for extension of time, not for leave to appeal. 12 When the applications came on for hearing, it soon emerged that there were two principal bases on which the defendants opposed any extension of time. The first was delay and the second was that there were no reasonable prospects of success in the appeal. 13 I have already summarised the facts concerning the delay in Miss Carlisle's case. It is now necessary to mention briefly the circumstances of the accident. This summary is based on the reasons of Newman J. There is not before this court a transcript of the evidence before him, nor is my summary intended to be anything more than a very brief summary of the situation as outlined in the reasons of the trial judge. 14 The accident in which both the applicants were injured involved a vehicle called an all terrain vehicle, or an ATV, which was present on a property on 25 October 1991 on which a dispersal sale had been held during the day. The people who were substantially the proprietors of the property and who were conducting the dispersal sale appeared to have been on friendly terms with the families of the present applicants, who were helping at the dispersal sale. During the day, a son of the people I will simply call the defendants, had been using the ATV to help with certain of the incidents of the sale. There was also some use of the ATV for pleasure purposes, which involved the two applicants. Then the defendants and their son left the property and shortly afterwards the applicants were seen in an injured condition and the ATV apparently overturned. In all events, there does not seem to have been any argument that the injuries were suffered by the applicants and that those injuries had been suffered by some use of the ATV. 15 The evidence of precisely what happened with the ATV was unclear and sparse because neither of the applicants had any clear memory of the events of the accident. Miss Carlisle had a fairly complete amnesia in relation to the accident. Miss Atkinson had a slightly better recall of events preceding the accident. 16 The cases brought by the applicants had two branches. One was based on assertions that, and I am summarising very much here, they were authorised to ride the ATV and had been given inadequate instruction about how to use it. Associated with this claim and also with the other branch of the claim was the fact which seems to have been common ground that vehicles such as this ATV were difficult to use safely. 17 There was a conflict in the evidence between what was said by the applicants and their witnesses and the defendants and their son about the issues of authority to use the vehicle and inadequate instructions about using it. The trial judge thought the evidence of the applicants and their witnesses was unreliable on these matters and he was impressed by the evidence given by the defendants and their witnesses. This resulted in him finding that the applicants' cases failed on that first branch of their claim. 18 The second branch depended upon the key for the ATV having been left in it and it was asserted that it was negligent on the part of the defendants to leave the ATV where it had been left when they went away from the property in circumstances where it could be readily used by people such as the applicants. In this regard, the trial judge reproduced some evidence in his reasons which had been given by Mrs Mulligan, who was one of the defendants I have been referring to. Part of what was reproduced by the judge involved cross-examination in which it had been suggested to Mrs Mulligan that she said some things immediately after the accident which indicated she felt in some way responsible for it. She denied this but she said this: " I thought - I have thought that over the period of time since the accident. I have thought. Was there anything I could have done to not let this happen? Q. What is the answer you have come up with? A. The key in the bike is a thing in my mind that if perhaps I had taken the key, perhaps if I had put it somewhere else, perhaps if I would have asked Bruce to go and take the key out, that these girls wouldn't have been hurt but I don't feel responsible for the girls being hurt. I feel very distressed about it. I think as an adult you always say to yourself: What could I have done, if these kids were hurt. That is what I feel to this minute. Q. That is because you recognise that adults have a particular responsibility to safeguard young people who do not have the same ability to predict dangers in life? A. That's right. That's the way I work. I feel that ... " 19 I do not reproduce the rest of the answer to that question because I am not quite certain that it is accurately reproduced in the document that I have. 20 The trial judge recorded that in regard to this branch of the case Mr Toomey QC, who was appearing for the applicants, submitted that by leaving the keys in the machine the son's action constituted an allurement to the plaintiffs and it was foreseeable that that could induce two high spirited girls to take the bike and use it. The trial judge rejected this submission on the basis that although the girls were no doubt high spirited and active sixteen year olds, there was nothing in the evidence to suggest they were irresponsible, they were not children of tender years and that the concept evolved in the so-called children's cases did not apply. The critical sentence in his judgment was this: " Nobody acting reasonably could, in my view, foresee that two apparently responsible girls would act foolhardily by riding a motor bike which, as I have found, they knew not how to ride. In other words, I find that the plaintiffs' actions in unauthorisedly taking the bike and riding it were not foreseeable by the defendants in terms of the decision in Wyong Shire Council v Shirt (1979-80) 146 CLR 40, particularly Mason J at 48 ." 21 For the defendants, it was contended before me that the trial judge was plainly right in taking this view and that there was no reasonable chance of that view being upset on appeal. Attention was to an extent concentrated on what had been called the children's cases which no doubt had been relied on by Mr Toomey and to an extent it may be that concentration on those cases distracted attention from what seems to be the basic question, whether a person acting reasonably could have foreseen that persons such as the applicants would take the opportunity of riding the ATV in which the key had been left. 22 On this second aspect of the opposition to the extension of time, it seems to me, having nothing further before me by which to try to estimate the prospects of appeal than the reasons of the trial judge, that although the appeal may well be a difficult one for the applicants, it cannot be characterised as hopeless. 23 That brings me back to the question of delay. In connection with that question, it seems to me there must be some consideration of what prejudice is occasioned to the defendants if an extension of time be granted - I am speaking now for Miss Carlisle's appeal. Counsel for the defendants submitted that there was some prejudice. He was not in a position to rely on any prejudice to the defendants themselves of a financial kind. The delay itself is in one sense a lengthy delay but it seems to me that the reasons for it are understandable. Although a super-efficient solicitor would not have allowed the position to arise which did arise, nevertheless from the point of view of Mrs and Miss Carlisle, they did everything they could in their financial circumstances to pursue the right of appeal. 24 It is of some importance too that Miss Carlisle had a right of appeal. At the present time there is no absolute right of appeal in respect of cases where the amount in issue is less than $100,000 but counsel for the defendants did not contest and in my opinion properly did not contest the materials before the court which show reasonably plainly that the amount in issue in Miss Carlisle's case is more than $100,000. Thus in her case there was a right of appeal. As I have already said, she and her mother acted as vigorously as was open to them in trying to get that appeal on foot. 25 The appropriate thing for the solicitor for Miss Carlisle to have done, as soon as she realised that the three months time consequent upon the filing of the appeal without appointment had elapsed, was to file immediately a notice of motion for an extension of time, or try to make some arrangement with the solicitors for the defendants which would have the result by agreement, if it could be obtained, that time would not run while the necessary organisation for seeing whether the appeal would be pursued was put in place. 26 Nevertheless, it seems to me that the solicitor in carrying out her duties was behaving sensibly in one point of view in not incurring further court expenses until the questions about the appeal had been dealt with by counsel, although at the same time not paying sufficient attention to the possible consequences of the running of time while that was being pursued. 27 In the circumstances however where Miss Carlisle began with a right of appeal, took the initial steps to get the appeal running and thereafter was not herself at fault in the delay that followed and the prejudice to the defendants caused by the delay in pursuing the appeal does not seem to me to be a significant factor, I would not decide that the delay should preclude Miss Carlisle from pursuing her appeal. TOOMEY: Your Honour, may I just say something. My learned friend has very kindly said to me that if your honour is inclined to grant the application in respect of Carlisle that he would not oppose the same order in respect of Atkinson. HIS HONOUR: I was going to raise that in a minute, because I am coming to the other one but thank you for that. I don't imagine Mr Toomey would say that if you weren't agreeable, Mr Cavanagh. CAVANAGH: No, I just indicated that to Mr Toomey. 28 HIS HONOUR: I have dealt only briefly with my opinion about the prospects of appeal and I do not think it is necessary to say any more than what I have said and bearing in mind the parts of Newman J's reasons I have referred to. I am influenced in the decision that I have reached by the fact that Miss Carlisle began with a right of appeal and even although it might have been a difficult appeal from the beginning, it was one she was entitled to bring before the court to get the court's opinion on. 29 Put very briefly, since I do not take the view that the appeal is hopeless and necessarily a waste of time and money, and taking account of the circumstances concerning the delay that I have summarised, it is my view that that appeal should be allowed to go forward. 30 I was about to summarise the facts concerning Miss Atkinson's case which is different in some factual respects since the date of judgment last year from that of Miss Carlisle when counsel informed me that in view of the opinion I had expressed concerning what should happen in Miss Carlisle's case there would be no objection to Miss Atkinson also being granted an extension of time. I should make it clear that I do not understand this as being any concession on the part of the defendants that Miss Carlisle is entitled to the extension of time that I am granting her. I would imagine that the defendants maintain the view, contrary to my own, that Miss Carlisle should not be granted an extension. I simply take what has been told to me as being an indication which seems again to me to be a fair position for the defendants to have taken up, that if Miss Carlisle is to be allowed to have her appeal go forward, then since the substance of Miss Atkinson's appeal seems to be identical with that of Miss Carlisle, then Miss Atkinson likewise should have the opportunity of having the Court of Appeal consider the question of foreseeability which Newman J found against them. 31 In coming back to that point, I should mention that in making his submissions in support of the case for extension, Mr Toomey put his case concerning the prospects on appeal on the second of the two branches of the case that I have earlier mentioned, that is that the leaving of the key in the ATV in the circumstances was a negligent thing to have done. He recognised that the findings of fact made by the trial judge in regard to the first branch of the case were findings of the kind which the Court of Appeal rarely if ever disturbs in view of the line of authority which includes the Abalos and Devries cases. I have approached my own very summary assessment of the prospects of appeal on that basis. 32 The result is therefore that having taken into account the aspects of delay relied upon by the defendants, the element of prejudice relied upon by the defendants and the prospects of success in the appeal, it seems to me that as a matter of discretion I should grant the application for the extension of time in the case which I have dealt with in a little detail, that of Miss Carlisle and in view of what counsel have told me, should likewise grant an extension of time in the case of Miss Atkinson. TOOMEY: May I raise just one matter, your Honour? HIS HONOUR: Yes. TOOMEY: Unless for the purposes of this application my learned friend concedes that Miss Atkinson would have an appeal as of right, that may leave us in the position where we have to make an application for leave in Miss Atkinson's case. It would seem to me -- HIS HONOUR: Is that the way it goes these days? I think what happens, when you file your notice of appeal, you will have to file an affidavit showing that the appeal lies as of right and then it's up to the other side, I think, if they want to challenge that, to do so. I don't know whether you agree with that understanding of the rules, Mr Cavanagh. CAVANAGH: I'm not certain about that your Honour but I can indicate that the purpose of the concession made by the defendant in respect of Miss Atkinson's right to appeal was so that no further costs were incurred by the defendant in coming back and opposing a leave application. It seemed sensible for the parties if one plaintiff is going on with the appeal that we be on the same track for both. If Mr Toomey's client files that affidavit, we wouldn't be opposing that. HIS HONOUR: I'm confirmed by somebody who has to look at these r 8 affidavits that what I have said is correct, so between the two of us I'm fairly sure that we're right. In any event, it can be noted that Mr Cavanagh has indicated that no opposition would be made to the assertion that will be contained in your notice of appeal and r 8 affidavits about the value of the appeal. TOOMEY: Thank you, your Honour. HIS HONOUR: How long do you need to put on your notices of appeal, Mr Toomey? TOOMEY: I'm sure we could do it within seven days but can I ask your Honour for 14 just in case? I would not like to come back to make an application for extension of time in which to file a notice of appeal. HIS HONOUR: Although I've stated my opinion in a fairly definite sort of way, the case is one that was getting near the margins for an extension of time. You mightn't be greeted quite so cheerfully on the next occasion if you had to do it again. TOOMEY: I'd rather not have to, your Honour.. HIS HONOUR: Again Mr Cavanagh, I don't suppose there's much difference between seven and fourteen days at this stage. CAVANAGH: No, your Honour. HIS HONOUR: What about the costs of these applications? I don't know that you've got much prospect there, Mr Toomey but what can you say? TOOMEY: I'd only ask your Honour to make them - I concede that they have to be the respondent's costs but I could ask that the payment be delayed until after the hearing of the appeal. CAVANAGH: Provided that they are not costs of the appeal in the sense that whoever wins the appeal that the respondent is entitled to costs of these motions and I won't oppose -- TOOMEY: I concede that, your Honour. CAVANAGH: I won't oppose an order that they not be paid. There's already some significant costs orders floating around. I don't think the respondents will be seeking to enforce this one in the short term. 33 HIS HONOUR: The orders that I will make in each application are that an extension of time for the filing of the notice of appeal with appointment be granted to 13 October 1999. I need not make this part of the order but the filing of the notices of appeal will entail the filing of the r 8 affidavits at the same time. 34 I order that the applicants in each summons bear the costs of the defendants, as I have been calling them, of the applications for the extension of time. 35 These are special orders which are intended to bring about the actual liability of the applicants for the costs in any event and are not to be subsumed in any order for costs that the applicants, if fortune smiles on them, might eventually obtain in the appeal 36 I note that it has been indicated by counsel for the defendants that enforcement of the payment of the costs payable pursuant to these orders will not be undertaken until after the appeal proceedings are complete, or I suppose if the appeal is successful, until the overall proceedings are complete. 37 There is one thing I will mention to counsel. In the course of giving these reasons, I have spoken of applicants and defendants and so forth. The terminology in these motions gets quite confusing, because the profession really has never caught up with the idea of claimants and opponents and I may tidy up the vocabulary when I revise the reasons for my judgment so as to fit in more precisely with the court rules, if, on reading the transcript, that seems desirable for clarity. Subject to that, I hope I will not be making any significant alterations. ********** 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.