Waverley Municipal Council v Cheowiry [2003] NSWCA 12

New South Wales Court of Appeal

CITATION : Waverley Municipal Council v Cheowiry [2003] NSWCA 12 HEARING DATE(S) : 5 February 2003 JUDGMENT DATE : 5 February 2003

JUDGMENT OF : Mason P at 11; Giles JA at 1; Ipp JA at 14 DECISION : Application refused. Summons dismissed with costs.

CATCHWORDS : Leave to appeal - extension of time - applicant stated would not appeal, then changed its mind - unsatisfactory reason for change of mind - refusing application would not cause injustice to applicant - extension of time refused. Gallo v Dawson (1990) 93 ALR 479; Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207; CASES CITED : Piening v Wanless (1968) 117 CLR 498; R v Unger [1977] 2 NSWLR 990; Waverley Council v Lodge (2001) 117 LGERA 447. PARTIES : Waverley Municipal Council - Claimant Michael Cheowiry - Opponent FILE NUMBER(S) : CA 40338/02 COUNSEL : P R Garling SC & M T McCulloch - Claimant D B McGovern SC & A J O'Brien - Opponent SOLICITORS : Phillips Fox - Claimant M D Di Re, Fairfield - Opponent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6375/01 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40338/02 DC 6375/01

MASON P GILES JA IPP JA

Wednesday 5 February 2003 WAVERLEY MUNICIPAL COUNCIL v CHEOWIRY Judgment 1 GILES JA: The opponent brought proceedings against the claimant for damages for injuries received when he fell down a cliff face at Ben Buckler, North Bondi, in 1996. The claimant was found liable on the basis that, although the danger in the opponent starting to make his way down the cliff face was obvious and was appreciated by the opponent, the claimant should have put a warning sign or a fence which would have operated, as the opponent said in his evidence, to make him think twice about doing what he did. Contributory negligence of 50 per cent was found, and the opponent obtained a judgment for $68,000. 2 This is an application for an extension of time in which to seek leave to appeal, the proposed appeal being as to liability only, and for leave to appeal. We have heard argument on the question of an extension of time on the assumption that there is an arguable case in any appeal. That assumption remains for what I now say. 3 Judgment was given on 21 September 2001. On 17 October 2001 the claimant's solicitor wrote to the opponent's solicitor saying that they were "instructed not to appeal the Court's decision". In evidence given in a subsequent stay application the claimant's solicitor said that the decision not to appeal was made "for commercial reasons", meaning that the claimant (or perhaps more accurately its insurer) did not wish to or was not prepared to incur more costs in an appeal given the amount of the judgment. The decision was made after the claimant's solicitors had offered to obtain for the claimant counsel's advice as to the result in the proceedings and the prospects of an appeal. 4 On 1 February 2002 the opponent's solicitor sought payment of the judgment sum. The claimant's solicitor told her she was awaiting instructions about whether to appeal. This first intimation of a possible change of stance came about, according to the solicitor, because of the decision of this Court in Waverley Council v Lodge (2001) 117 LGERA 447, in which judgment was given on 29 November 2001. 5 The claimant's solicitor was instructed to appeal on 18 March 2002. It is not clear what further communications, if any, there were between the solicitors before the claimant filed the notice of motion seeking a stay on 19 April 2002 and then the present summons in this Court on 30 April 2002. 6 The claimant faces the difficulty that it stated promptly and clearly that it did not intend to appeal. As was said in Itek Graphix Pty Limited v Elliot (2002) 54 NSWLR 207 at 225, in a slightly different context, a deliberate decision of that nature (in that case a decision to allow a statutory limitation period to expire) is a powerful factor against a grant of leave. It was there said that where a deliberate decision to allow the limitation period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave, and numerous authorities were mentioned. 7 The explanation for the decision not to appeal in the present case was as I have said, the commercial reasons. What is really required is an explanation for the change of mind. The explanation was that the decision of this Court in Waverley Council v Lodge caused a revisiting of the claimant's position and after further consideration a wish to appeal. 8 I find it difficult to accord force to that explanation. The claimant was of course a party to Waverley Council v Lodge, being the appellant in that case. It was a slipping case involving questions of obviousness of risk and the need for warning against an obvious risk. The claimant must have been well aware of the law and its application in those respects which arose again in the present case, and there was nothing new in the decision of this Court. If the claimant's position taken as appellant in Waverley Council v Lodge was correct, as proved to be so, then it could and should have been alive to and taken the same position in a timely application for leave to appeal in the present case. I cannot see that the decision in Waverley Council v Lodge could be regarded as a material factor explaining the failure of the claimant to appeal, or more correctly seek leave to appeal, promptly after 21 September 2001. 9 As is made clear in the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480-81, upon the expiry of the time for the claimant to apply for leave to appeal the opponent had what his Honour referred to as "a vested right to retain the judgment". The right was of course subject to the grant of an extension of time and then leave to appeal and his Honour said that in order to obtain leave in such a case there must be material satisfying the court that to refuse the application would constitute an injustice. 10 The claimant said that it did not intend to appeal. Only in February 2002 did it intimate a possible change of mind, and it did not act until the end of April 2002. In the meantime the opponent first believed that he had an unchallenged right to the judgment sum and then was left in doubt. On the uncontested evidence the late application for leave to appeal caused him significant distress and upset and to delay plans that he had in relation to the application of money paid to him. In the circumstances I have related, I am not satisfied that to refuse the application would constitute an injustice to the claimant. If anything, to grant it would work an injustice on the opponent. In my opinion the extension of time in which to seek leave to appeal should be refused. 11 MASON P: I agree and would add just this. One branch of the claimant's argument were the submissions that its belated decision was prompted by Waverley Council v Lodge (2001) 117 LGERA 447 and that Lodge's case involved a significant development in the law as understood or at least propounded by appellate courts in this country. Let those propositions be assumed correct for the purpose of argument. On that hypothesis the claimant's argument runs foul of the principles underlying the well-established doctrine that in civil and criminal appeals an extension of time to appeal will not be granted solely on the ground that a subsequent decision to that now sought to be appealed from has disclosed that the law as it was understood when the trial was conducted is no longer the law... (see for example Piening v Wanless (1968) 117 CLR 498 and Regina v Unger (1977) 2 NSWLR 990). The reasons for that doctrine are explained by Chief Justice Street in Unger's case. 12 The claimant made what it described as a deliberate and a commercial decision not to take this matter any further after it and its lawyers had had full opportunity to consider the reasons for judgment in the District Court. Having regard to the size of the verdict and the minimal precedential or other impact of the judgment now under challenge, nothing I have heard suggests any reason to falsify that decision even from the claimant's own point of view. In saying this I am not inferring my satisfaction as to the correctness of the judgment below. Its arguable incorrectness was the assumed basis upon which the application proceeded thus far in the Court. 13 I agree with the orders proposed. 14 IPP JA: I do not consider that the grant of leave would cause the opponent prejudice. Nevertheless, by reason of the deliberate decision taken by the claimant, I would refuse the grant of leave for the reasons given by Giles JA and for the additional reasons given by the President. 15 MASON P: Application refused. Summons dismissed with costs. **********