Cochrane v Peteranel & Morton [1999] NSWCA 3

New South Wales Court of Appeal CITATION : Cochrane v Peteranel & Morton [1999] NSWCA 3 FILE NUMBER(S) : CA 40007/98; 40022/98 HEARING DATE(S) : 24.8.98 JUDGMENT DATE : 21 January 1999

John Anthony Cochrane (claimant/appellant) PARTIES : Rosemary Peteranel (opponent/respondent 40007/98) Roderick Morton (opponent/respondent 40022/98) JUDGMENT OF : Registrar Jupp

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 4421/97 4419/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ

COUNSEL : Mr Sweet - claimants Mr Renshaw - opponents SOLICITORS : Kell Heard McEwan - claimants Abbott Tout - opponents CATCHWORDS : extension of time to appeal DECISION : orders made on 24/8/98 - time to file notices of appeal extended to 28/8/98; claimant to pay opponents' costs of motions (those costs to be borne by the legal representatives of the claimant)

7

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

REGISTRAR JUPP

THURSDAY 21 JANUARY 1999

JOHN ANTHONY COCHRANE -v- ROSEMARY PETERANEL CA 40007/98

JOHN ANTHONY COCHRANE -v- RODERICK MORTON CA40022/98

JUDGMENT

1. Registrar: On 24 August 1998 I made orders in these cases extending the time to file and serve a notice of appeal to 28 August 1998. Notices of Appeal with Appointment were subsequently filed in each case on 28 August 1998. The order for the extension of time was made on the basis that the appellant would pay the respondent's costs of the motion, but that those costs would have to be payable by the appellant's legal representatives rather than the appellant. Because of the time taken to deal with the application on that day, and as there was still another case waiting to be heard, I did not give full reasons for making those orders. However I advised the parties that I would provide written reasons if a request was made within 7 days, and I further directed that the time to seek a review of the orders would be extended to 28 days after those written reasons were published. By letter dated 27 August 1998 the respondent in each case requested that written reasons be supplied. 2. The appeals arise from a Judgment of Garling DCJ handed down on 22 December 1997. The appellant in each case was the plaintiff in 2 separate actions in the District Court in respect of personal injuries sustained in 2 motor vehicle accidents. The cases were heard together and one set of reasons was published in respect of the 2 matters. The appellant/plaintiff was successful in both matters and received damages of $108,514 in respect of the Morton case and $162,782 in the Peteranel case. 3. It appears that the solicitor for the appellant was instructed in early 1998 that the appellant wanted to appeal the decisions on the basis that the amount of the damages awarded were inadequate. On 7 and 12 January 1998 summonses for leave to appeal were filed in each matter. These summonses were returnable before the Court on 16 March 1998. The applications for leave to appeal were heard by Meagher JA and Sheller JA and dismissed with costs. Although their Honours did not give formal reasons as to why leave was not granted it does not appear that the applications for leave were dismissed on the merits of the prospective appeals. Rather it appears from the transcript of the proceedings that during the course of the argument the Court formed a view that leave was not required because the amounts in issue would have allowed appeals as of right. The Court formed this view having regard to sums claimed by the appellant for superannuation. The reasons for Judgment of Garling DCJ, as originally supplied by Court Reporting do not include the Judges findings in respect of superannuation. It appears that in the course of delivering his extempore reasons, His Honour sought some advice from the respective counsel regarding superannuation. This extract was not included in the reasons supplied by Court Reporting, nor was the Judge's determination on superannuation. This omission appears to have confused the appellant's legal advisers, and this is largely the explanation for the many delays that followed. 4. Mr Kell, the solicitor for the appellant swore 2 affidavits in support of the motion (in each case). Mr Kell's original affidavits were sworn on 31 July 1998. These affidavits and another affidavit sworn by Trevor Wells, an employed solicitor in Mr Kells firm, on 28 May 1998 failed to explain, in any adequate way, the reason why an application for an extension of time to appeal was not made as soon as it became apparent that the applications for leave were dismissed on the basis that there was a right of appeal. On 3 August 1998 the motions were adjourned to allow additional evidence to be put on by the claimant to explain the delay in making the application for an extension of time. The adjournment on that day was on the basis that the claimant would pay the opponent's costs of that day on an indemnity basis, but that those costs were to be borne by the appellant's legal representatives rather than the client, and that if the additional evidence was not filed that the motions and appeals would be dismissed with costs. Subsequently Mr Kell filed a further affidavit (in each case) sworn 14 August 1998. The opponent also filed affidavits. These were sworn by Mr Mancuso on 9 July and 18 August 1998. Although it was suggested by Mr Renshaw, counsel for the opponent, on 3 August 1998 that Mr Kell would be required for cross-examination in respect of his evidence he was not in fact cross-examined. The argument by the opponent on 24 August 1998 largely went to the adequacy of Mr Kell's explanation. With some reservations I took the view that although the explanation was not ideal, without the benefit of any cross-examination of Mr Kell, I had to accept that his evidence was an honest explanation and the best explanation that he was able to provide. There was an implicit acceptance by Mr Kell that he was at fault. 5. There are several matters that appear to have contributed to the delays. There appears to have been a breakdown in effective communication between the solicitors and counsel acting on behalf of the appellant. Mr Kell was not present when the Judgment was delivered. Mr Sweet of counsel appeared and reported to Mr Kell. Mr Sweet apparently advised Mr Kell that the Judgment did include some reference to superannuation but that the allowance was inadequate. It is unfortunate that counsel and solicitor did not have a proper consultation and consider the appropriate course of action before summonses for leave were filed. In retrospect it is clear that notices of appeal ought to have been filed. However, without wanting to justify the appellant's legal representatives actions, this is not a case where it was obvious that there was an appeal as of right. The District Court Act had only been recently amended, and was to be further amended, to require leave in those cases which did not involve an amount in issue of more than $100,00. In a proposed appeal as to the inadequacy of damages it will often not be clear whether there is an appeal as of right or whether leave should be sought. At that time potential appellants did not know how the Court would be approaching these cases. I also note that the Judgment was delivered only days before the Court vacation, and that the summonses were filed during the Court vacation. At that time an application for leave had to be filed within 14 days of the relevant decision (this has now been increased to 28 days in line with the time to commence an appeal as of right). Although time did not run from Christmas Eve to 9 January 1998, it is clear that any application for leave would have to be lodged during the Court vacation. Under the circumstances I can understand that the solicitor and counsel may have not have had the opportunity to consider the most appropriate course before the time to lodge summonses for leave had expired. It is nevertheless unfortunate that more care was not taken to reassess the appropriate course of action before the return of the summonses. If a schedule of damages had been prepared it may have become apparent much earlier that there might have been an appeal as of right. It would also have made it clear that there was some problem in respect of the superannuation issue. Part of the confusion can be attributed to the transcript of the reasons for judgment. This was received by Mr Kell in early March. As noted above this transcript did not include any mention of the superannuation, although an allowance for it had been made in the verdict. 6. Mr Young of counsel appeared for the claimant on the leave application. In a letter to Mr Kell he sets out the superannuation problem. The evidence by Mr Kell at this time is somewhat scant. He notes "there was therefore an inconsistency between what I understood from Mr Sweet Garling DCJ had done as to superannuation and what was revealed in His Honour's Judgment received from the District Court." Although Mr Kell notes that he was aware of the inconsistency there is no real explanation as to why he did not try to resolve this issue after he had received the (incomplete) Judgment and the letter from Mr Young dated 18 March 1998. There is a period of about 3 weeks where the problem had become apparent and where appropriate action should have been taken to clarify it. It is true that to a certain extent Mr Kell would have had to consult with Mr Sweet before he could reconcile the problem and there may have been practical problems in doing this. However Mr Kell seems not to have grasped the possibility that the Judgment was incomplete, nor that if an appeal as of right was to be sought, that time was of the essence. I accept however that the discrepancy in the Judgment was an unusual circumstance and that the solution to the problem may not have been obvious to Mr Kell. 7. On 9 April 1998 Mr Kell went on leave and left this matter in the hands of Mr Wells. Mr Wells affidavit is silent as to why he did not resolve the issue while Mr Kell was on leave, however this case was Mr Kells's primary responsibility, and any default by the appellant while Mr Kell was away for one week cannot be laid on Mr Wells. Between 20 and 23 April 1998 Mr Wells and Mr Sweet appear to have confirmed to Mr Kell that superannuation was included in the Judgment. 8. It was about this time that Mr Kell was diagnosed as having contracted hepatitis A. Mr Kell was on sick leave from 14 May 1998 until late June. His evidence also notes that he was feeling unwell and having difficulty attending to his practice for at least 2 weeks prior to 14 May 1998. Here there is at least some real explanation for why progress to commence the extension of time application slowed. As it occurred the relevant motions were filed while Mr Kell was on leave on 28 May 1998. The motion was based on a misinformed impression that the trial Judge had not given any allowance for superannuation or given any reasons for so doing. 9. The amended transcript of the reasons for judgment only became available to Mr Kell on 3 July 1998, it then became apparent that the grounds of appeal would have to be amended. 10. Although this is a long and sad history, the claimant's assertion is that the delay in making the application is largely a result of the mistake in the transcript of the Judgment. I accept that in the circumstances of this case this is an explanation for a large part of the delay. Together with Mr Kell's illness, I accept that this is a sufficient explanation to justify an extension of time unless the respondent can demonstrate some special prejudice to them. 11. This does not appear to be a case where the appeals are hopeless and where the discretion should be exercised against the claimants for the reason that the respondents will be forced to defend a hopeless appeal. The grounds of appeal are properly drawn, and there is nothing to suggest that the appeals are not bona fide. There is no evidence that the appellant will not be able to pay for the costs of the appeals if the appeals are unsuccessful. There is also no evidence that the opponents' insurer has acted to its detriment on the assumption that there would be no appeals. These will be relatively short appeals and the parties should be able to keep the costs of the appeals down. 12. The discretion to extend time to appeal is given for the sole purpose of enabling the Court to do justice between the parties (Gallo v Dawson 93ALR 479). If the application had been refused in this case the appellant would have lost his opportunity to argue that the trial judge erred in respect of the allowances he made for superannuation. Potentially the amounts involved are quite substantial. The loss of a right of appeal would not have been due to any action or inaction of the appellant personally. The appellant had indicated that he wanted to appeal at an early stage. It may be that the appellant could seek damages for professional negligence against his solicitors, however this would be much more expensive and riskier than prosecuting an appeal. Even if the appellant might have been successful on an appeal there is no certainty he would be able to recover the same amount or anything in an action for professional negligence. 13. The prejudice to the respondents as to the costs of the application were ameliorated at least in part by the costs order made in their favour as a condition of the extension of time. I note that the respondent obtained an order for indemnity costs in respect of the adjourned hearing of the motion on 3 August 1998. Otherwise the prejudice to be suffered by the respondent appears to be that any respondent suffers. That is they may loose the appeals. 14. The appellant in these appeals is an individual seeking fair compensation for personal injuries sustained in 2 serious accidents. In the absence of an acceptable offer from the respondents' insurer he was required to litigate his claim. He obtained a Judgment in his favour but for a lesser amount than he believes he is entitled to. Subject to the provisions of the District Court Act he is entitled to appeal that decision. If the trial Judge erred in assessing the appropriate amount of damages an appeal is the only way that he can rectify that error. 15. The effective respondent to these appeals is the respondents' insurer. It is a large corporation. One of its principle functions is to fairly compensate those persons who sustain injuries as a result of the negligence of its policy holders. The fact that a party is a corporation rather than an individual does not generally bear on the discretion as to whether an extension of time to appeal should be granted or refused. However a party that litigates frequently might be expected to be more familiar with the rules, and this will be relevant when the discretion is exercised. Similarly where a respondent is a corporation and the subject matter of the proceedings is a small part of its potential liabilities, it is less likely that the corporation will have acted to its detriment as a result of a "favourable" judgment in its favour, whereas an individual may have spent a perceived windfall after the time to appeal had expired. In balancing the potential prejudice to the respective parties in these cases, and having found that there was a sufficient explanation for the delay, it appears to me that the respondents should not be able to escape a potential liability on the basis that the notices of appeal were filed out of time. 16. I have to apologise to the parties for the delay in publishing these reasons. These reasons were largely completed some months ago, however the relevant papers became misplaced in the Registry which delayed me finalising the reasons. When the papers were found later in the year I decided that as it would take me some time to review my notes I should finalise these reasons during the Court vacation. Once again I apologise for any inconvenience to the parties.