Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harding v Anton's Wire Products Pty Ltd [2013] NSWCA 258 Hearing dates: 5 August 2013 Decision date: 08 August 2013 Before: Meagher JA Decision: (1) Application to extend the time for filing of notice of appeal and amended notice of appeal dismissed. (2) Applicant pay respondents' costs of the 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 to extend time for filing notice of appeal - whether applicant's case fairly arguable -application dismissed Legislation Cited: Supreme Court Act 1970, s 75A Uniform Civil Procedure Rules 2005, r 51.16 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Hampson v Hampson [2010] NSWCA 359 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Tjiong v Tjiong [2012] NSWCA 201 Tomko v Palasty (No 2) [2007] NSWCA 369 Category: Principal judgment Parties: Reginald Bruce Harding (Applicant) Anton's Wire Products Pty Ltd (First Respondent) Antonio Carnevale (Second Respondent) Representation: Counsel: Reginald Bruce Harding (in person) (Applicant) D Hanna (Respondents) Solicitors: McDonnell Schroder (Respondents) File Number(s): 2013/69484 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-07-20 00:00:00 Before: Mahony DCJ File Number(s): 10/391052 Judgment 1MEAGHER JA: The applicant, Mr Harding, seeks an order under Uniform Civil Procedure Rules 2005, r 51.16(1)(c) for an extension of the time in which to file and serve his notice of appeal and amended notice of appeal. That proposed appeal is from the decision of Mahony DCJ delivered on 20 July 2012. Mr Harding filed a notice of intention to appeal on 20 August 2012. His notice of appeal was filed on 25 February 2013 and the amended notice of appeal on 5 June 2013. 2The respondents (Anton's and Mr Carnevale) oppose that application on the basis that Mr Harding's grounds of appeal do not disclose a fairly arguable case on appeal. It should be noted at the outset that Mr Harding's delay in filing the notice of appeal and amended notice of appeal is not lengthy and the respondents do not point to any specific prejudice suffered as a result of that delay. Instead they maintain that they have a vested right to retain the judgment which is the subject of the proposed appeal. That right must be weighed in the balance against Mr Harding's interest in proceeding with his appeal. 3In the proceedings before Mahony DCJ, Mr Harding was represented by a solicitor and counsel. He is acting for himself in the proceedings before this Court and maintains that the solicitor who acted for him at the trial did not do so in his best interests. He has lodged a complaint about the conduct of that solicitor with the Legal Services Commissioner. Whether there is any merit in that complaint and what Mr Harding says about the solicitor's conduct was not addressed in this application. 4Mr Harding was present by telephone at the hearing of his motion. He relied upon his written submissions dated 3 June 2013 and also addressed the Court and answered questions from the Court in the course of oral argument. 5In order to understand and evaluate his grounds of appeal it is necessary first to say something about the subject matter of the underlying proceedings and the reasoning of the primary judge. 6Mr Harding was a director and principal of Equipment Tech Pty Ltd (Equipment Tech) which manufactured and marketed stainless steel products for barbecue cooking equipment under the brand name "Top Notch". That company owned various patents, registered designs and a trademark in relation to those products. By a written agreement dated 9 July 2009 Equipment Tech agreed to sell to Anton's the intellectual property in those products as well as the stock which it then held. 7Mr Harding alleged that at the same time he agreed with Mr Carnevale, on behalf of Anton's, that he would be employed by Anton's as an adviser and sales co-ordinator for a term of three years at an annual salary of $100,000. Other terms of this agreement were said to be that Mr Harding would be paid a car allowance of $300 per week and a commission in respect of orders obtained by Anton's relating to Equipment Tech "intellectual property and stock". 8This agreement was said to be partly written and partly oral. The written part was the Equipment Tech contract. The oral part consisted of conversations with Mr Carnevale at the end of May 2009, with Mr Carnevale and his solicitor, Mr Keen, on about 26 June 2009 and with Mr Carnevale and Mr Keen on 9 July 2009 at the time the Equipment Tech contract was signed. 9Mr Harding also relied upon a letter dated 15 July 2009 signed by Mr Carnevale as evidence of the agreement he alleged. That letter said: "TO WHOM IT MAY CONCERN This letter is to advise that Reginald Bruce Harding is now employed by Anton's Wire Products P/L. His wage will be $100,000 (one hundred thousand dollars) per annum plus a weekly car allowance of $300.00 (three hundred dollars)." 10At the trial evidence was given by Mr Carnevale, Mr Keen and Mrs Carnevale, as well as by Mr Harding. The primary judge preferred the evidence of Mr Keen and Mr Carnevale in respect of what was said at the meetings on 26 June and 9 July 2009. He summarised his findings at [76]. He did not accept Mr Harding's evidence as to the making of the alleged employment agreement. He rejected Mr Harding's submission that from 9 July 2009 he undertook tasks which were consistent with his being an employee of Anton's: [76(5), (6)]. His Honour found that in particular respects Mr Harding's conduct after 9 July 2009 was inconsistent with the existence of the agreement alleged. He accepted Mr Carnevale's explanation as to the letter dated 15 July 2009 being provided to Mr Harding to assist him to obtain bank finance in circumstances where Mr Carnevale had an interest in that finance being provided so that a floating charge over Equipment Tech's business assets could be extinguished: [76(10)]. Finally, the primary judge rejected Mr Harding's pleaded allegation that in about September 2009 Anton's had terminated the employment agreement and dismissed him with immediate effect: [76(12)]. 11In circumstances where the respondents do not point to any lengthy or prejudicial delay, ordinarily the interests of justice will require that the time for filing a notice of appeal be extended if there is a satisfactory explanation for the delay and the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369 at [14], [17], [55]-[59]. Mr Harding did not lead evidence as to the reasons for his delay in proceeding with his appeal. However, the likely reasons for the delay include that he is unrepresented and has (as was found by the primary judge at [10]) from time to time suffered from mental health problems and been hospitalised. In the circumstances I am prepared to proceed on the basis that these matters satisfactorily explain the delay which has occurred. 12It remains necessary to consider whether the applicant has a fairly arguable case in relation to his proposed appeal. Mr Harding's amended notice of appeal contains the following six grounds of appeal: "1. Miss Represented by David Hooper Solicitor. 2. David Hooper Solicitors failed to call key Witness Lina Hatem. 3. David Hooper Solicitors failed to Subpoena Barbeques Galore & Anton's Wire Products as instructed. 4. Judge J P Mahony failed to believe the credibility of the letter of employment without supporting evidence. 5. The business (Equipment Tech P/L) was placed into Liquidation as a result of Anton's Wire Products P/L and unable to be represented in court action. 6. I Reginald Bruce Harding am the Plaintiff." 13Grounds 1, 5 and 6 do not identify any arguable error or other basis for setting aside the underlying judgment. The fact that Equipment Tech may not have been a party to that litigation or represented was not relevant to the determination of Mr Harding's claim. 14By grounds 2 and 3 Mr Harding seeks to lead further evidence at the hearing of any appeal. He made this clear in his oral argument before me. Section 75A(8) of the Supreme Court Act 1970 provides that the Court may receive further evidence on an appeal from a judgment which follows a hearing on the merits provided that there are "special grounds" for doing so. Ordinarily it must be shown that the further evidence could not have been obtained through reasonable diligence for use at the trial and that the evidence is such that there is a "high degree of probability that there would be a different verdict" if it was taken into account: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [135]-[136]; and the discussion in Tjiong v Tjiong [2012] NSWCA 201 at [165]-[168]. 15The evidence of Ms Hatem which, by ground 2, Mr Harding seeks to adduce is evidence as to a meeting which occurred in February 2010. That meeting was between Mr Harding and Mr and Mrs Carnevale. Ms Hatem was also present. Mr Harding says that Ms Hatem's evidence is that at this meeting Mr Carnevale said he had second thoughts about Mr Harding's employment agreement and that he was terminating their contract dated 15 July 2009. Mr Harding says that he "instructed his solicitor on many occasions" to call Ms Hatem as a witness to give this evidence at the trial but that he did not do so. 16The evidence which, by ground 3, Mr Harding seeks to adduce is of sales by Anton's of Top Notch products to Barbeques Galore over the period from 9 July 2009 to the current time. Mr Harding submits that such evidence will show that sales were made by Anton's as a "level 1/2 supplier (Wholesale)" which was a status Anton's could only have achieved by reason of his redirecting Barbeques Galore's orders from Equipment Tech to Anton's in his capacity as an employee of Anton's. Mr Harding agreed that he had also requested his solicitor "many times" to issue subpoenas to Barbeques Galore and Anton's so that this information would be available at the trial. Mr Hanna, who appears for the respondents, also points out that a subpoena to produce was issued to Barbeques Galore at the request of Anton's, and that some documents were produced for use at the trial. Exactly what those documents were is not clear. In addition, the primary judge's reasons suggest that there was some evidence led at the trial as to sales by Anton's to Barbeques Galore: [76(6), (9)]. 17What is beyond argument is that the further evidence which Mr Harding seeks to adduce and which is the subject of grounds 3 and 4, either was available, or could have been obtained through reasonable diligence, for use at the trial. When addressing the latter question it does not assist Mr Harding to rely upon any asserted omissions or failures on the part of the lawyers acting for him: Hampson v Hampson [2010] NSWCA 359 at [34]-[38]. That evidence also is not such that it is readily apparent that had it been led at the trial the result would have been different. It is not as to what was said between Mr Harding and Mr Carnevale in the conversations by which the agreement was said to have been made. On its face the further evidence of Ms Hatem also appears to be inconsistent with Mr Harding's allegation, rejected by the primary judge, that Mr Carnevale had terminated the employment agreement in September 2009. 18The remaining ground 4 is that the primary judge did not accept that the letter dated 15 July 2009 and signed by Mr Carnevale confirmed the existence of the employment agreement alleged. His Honour's acceptance of Mr Carnevale's explanation of the circumstances in which that letter was provided is not, from a reading of his Honour's reasons, obviously or plainly wrong or questionable. This ground of appeal as formulated does not identify an arguable basis for asserting error in a case where the primary judge's conclusion was expressed as based in part on his assessment of the credibility of three principal witnesses, who included Mr Keen. 19In the end I am not satisfied that any of Mr Harding's grounds of appeal as formulated and understood in the light of his written and oral submissions is fairly arguable or has reasonable prospects of success. That being the position the interests of justice do not require that the time for the filing and service of his notice of appeal and amended notice of appeal be extended. Mr Harding's application for that order should be dismissed with costs. ********** 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: 08 August 2013