Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jaffari v Grabowski [2012] NSWCA 425 Hearing dates: 8 December 2012 Decision date: 08 December 2012 Before: Barrett JA Decision: 1.The application for extension of time is dismissed. 2. I order that the applicants for an extension of time pay the costs of the respondent to that application. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - appeal - application for extension of time to appeal - no matter of principle Cases Cited: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519 Tomko v Palasty (No. 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Category: Principal judgment Parties: Mehdi Jaffari - First Appellant Tracy Jaffari - Second Appellant Livia Grabowski - Respondent Representation: First and Second Appellants in person by telephone link from New Zealand M T Hutchings - Respondent First and Second Appellants in person McIntosh Macphillamy & Co - Respondent File Number(s): 2012/315253 Decision under appeal Date of Decision: 2011-07-15 00:00:00 Before: Gibb DCJ File Number(s): 2009/338914 Judgment 1The applicants, Mr and Mrs Jaffari, seek an extension of time for the filing of a notice of appeal. They were the unsuccessful defendants in an action in the District Court in which they were sued for debt by Ms Cato who has since died and whose legal personal representative is the present respondent. 2The case was heard by her Honour Judge Gibb who on 15 July 2011, ordered judgment in favour of Ms Cato in the sum of $150,000 plus interest of $36,480.83, making a total judgment sum of $186,480.83. Judge Gibb delivered comprehensive reasons for judgment in which she canvassed defences which included, in general terms, the propositions that the acknowledged loan had been forgiven or that there had been other forms of indulgence by Ms Cato, removing the liability of the present applicants to repay the loan. Those matters were canvassed in detail. The defences were not upheld and the judgment I have mentioned was entered. 3The applicants referred immediately or fairly soon to the possibility of appeal. They attempted to obtain Legal Aid in New South Wales to permit them to pursue an appeal or at least to pursue the possibility of appeal. They were by that time living in New Zealand where they now reside. The application for Legal Aid was refused in August 2011. The letter of refusal referred to rights to seek review of the decision but there is no evidence before me that any such review was sought. 4Shortly beforehand, in July 2011, the solicitors who had acted in the District Court proceedings for the present applicants had ceased acting. They retained the file against a claim for unpaid costs. 5There is no evidence of any tangible steps taken by the applicants after August 2011 - towards the pursuit of an appeal although they do refer (or Mrs Jaffari refers in her affidavit) in general and undefined terms to attempts to discover what to do in order to appeal and to obtain an understanding of the legal processes that would have to be followed in New South Wales. The point is made that being in New Zealand made it even more difficult than it would otherwise have been for people with no legal knowledge or legal training to obtain the necessary information and understanding. 6There was renewed activity and tangible action after July 2012, when steps were initiated by the present respondent to obtain registration of the District Court judgment in New Zealand. Following that move, the present applicants filed the application for extension of time that is now before me, supported by affidavits of both applicants of 10 October 2012 and a subsequent affidavit of Ms Jaffari of 26 November 2012. 7In the case of Tomko v Palasty (No. 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at para 55, it was pointed out by Basten JA that the approach to an application of the kind now before me requires acknowledgment of the proposition stated in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519 at 516 that the respondent to the application has a vested right to retain the judgment which the applicant seeks to challenge on appeal or intended appeal. As Basten JA also pointed out, the factors to be examined upon such an application are (1), the length of the delay, (2) the reasons for the delay, (3) the prospective appellant's prospects of success, and (4) any prejudice suffered by the respondent, 8The matters to which I have already referred, go to the first and second of these issues. The length of the delay is very great. The District Court judgment was given on 15 July 2011. Steps to seek an extension of time for an appeal were not taken until more than a year later. That is very significant, even gross delay. This is not a case of a deadline having been missed by a few days or even a few weeks. It is as I say, gross delay. 9As to the reasons for the delay, there is really nothing to which the applicants point apart from their lack of knowledge of what it was that they needed to do and their inability - they say through lack of means although there is no evidence before me on that - to discover what it was that they should be doing and how they should discover what they should be doing. That is a position in which litigants in person are always placed. A balance must be struck. Persons who have no legal knowledge must be recognised as being at a disadvantage but that is not something that can be turned on its head, as it were, to produce under prejudice for another party. The lack of evidence of diligent and detailed steps to pursue the possibility of appeal, means that there is really very little beyond generalised statements now before the Court to explain the reasons for the delay. 10The assessment of the first and second matters to which I have referred, the length of the delay and the reasons for the delay, is therefore very strongly against the present applicants. 11I proceed nevertheless to consider the third matter which is the applicants prospects of success. 12The grounds on which they would, if permitted, seek to challenge the District Court judgment are set out in a form of notice of appeal which is before me. There are five grounds stated, and I shall take them in reverse order. 13Ground No 5 is that the trial judge "failed to recognise the authenticity of the counterclaim filed by the appellants". This is largely unexplained but to the extent that it may suggest that the judge did not duly weigh and come to a conclusion on the defences that the present applicants put forward in the District Court as defendants, then a perusal of the District Court judgment (which is annexure B to Mr Nichols affidavit of 5 November 2012 now before me), shows that there is no substance to the complaint. The judge dealt in details with the defences. 14Ground No 4 is that the judge "demonstrated a predisposition against the defendants from the start of the case". That is a vague statement of which no further particulars are given. In response to it, counsel for the present respondent makes the valid point that there is nothing before this Court to suggest that the issue of bias or apprehension of bias, was raised with the trial judge. Nor is there any suggestion that her Honour was asked to disqualify herself from the further hearing of the matter because of bias or apprehension of bias. There is therefore nothing before me that suggests any cogency so far as the fourth ground is concerned. 15Ground No 3 is that the judge "excluded relevant evidence set out in the affidavits of the defendants". So far as I can make out, the only evidence that was rejected by the judge in the affidavits put forward by the present applicants as defendants, was rejected on the grounds of form and the form objection and the upholding of the objection was accompanied by a grant of leave to adduce oral evidence. From that one surmises that there is no apparent basis on which ground 3 would have prospects of success on an appeal. 16Ground No 2 is that the judge "prevented the defendants' counsel from cross-examining the plaintiff's witness about evidence that was critical to the claim below". I do not have a transcript. I cannot tell how this ground would fare. 17Ground No 1 is that the judge "excluded relevant evidence, namely, a DVD showing an interview in which the deceased, Ms Cato, showed the close relationship between herself and the first defendant". The suggestion here seems to be that a DVD containing evidence of a close relationship between persons found to be have been debtor and creditor would have had some bearing on the finding with regard to the debt claim and the defences to it. That cannot be so. There are many debtors who have close relationships with their creditors. There are many creditors who have close relationships with their debtors. There are many people in close relationships who do not make gifts to one another. One could go on with examples that show that this ground is of very little utility. 18I turn therefore to the final matter identified in Tomko v Palasty (No 2), which is the prejudice suffered by the respondent. That speaks for itself. The respondent has taken steps to register the judgment in New Zealand. The evidence in Mr Nichols' affidavit suggests that the New Zealand Court has yet to come to a decision on that matter and is awaiting the outcome of the steps that are taken by the present applicants with respect to a possible appeal. The prejudice to the respondent is clear. 19Weighing all of the matters that arise for consideration on this application, my conclusion is that the delay is gross delay; that the reasons for the delay are weak in that there is no sufficient explanation of why such gross delay occurred; also that the appellants' prospects of success according to the grounds of appeal they have put forward are very weak indeed; and that there would be significant prejudice suffered by the respondent if the extension of time were granted. 20The application for extension of time is therefore dismissed. (Submissions on costs) 21The rules of court provide that costs are to follow the event unless some good reason to the contrary is shown. No good reason is shown here. I order that the applicants for an extension of time pay the costs of the respondent to that application. ********** 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. Decision last updated: 13 December 2012