Re Garth Carter v Geoff Layton and Co Pty Ltd [1992] FCA 409 (26 August 1992)

FEDERAL COURT OF AUSTRALIA

Re: GARTH CARTER
And: GEOFF LAYTON and CO. PTY. LTD.
No. G118 of 1990
FED No. 685
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice and Procedure - application for extension of time to file and serve notice of appeal - applicant appearing in person - whether there is any reasonable prospect of success if appeal were to proceed.

HEARING

BRISBANE
26:8:1992

The applicant appeared in person

Counsel and Solicitors Mr Bell instructed by Graham
for respondent: Davies and Associates

ORDER

THE COURT ORDERS:
1. That the application for leave to appeal stand over for hearing before the Full Court and that any application for leave to cross-appeal be heard at the same time.

2. The Registrar inquire whether there are any schemes in force in Queensland for the assistance of unrepresented litigants and, if so, whether the benefit of that scheme is available to the applicant.

3. The matter stand over before the Registrar for mediation and directions in connection with the preparation of the hearing.

4. Costs of the application are reserved for the Full Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an application for extension of time to file and serve a notice of appeal brought by Mr Carter, who is unrepresented on this occasion. The application is made in respect of a judgment given by Spender J. at a final hearing of rather complicated proceedings for breach of contract and for alleged misleading and deceptive conduct said to have been made by an employer to Mr Carter to induce him to enter the employment of the respondent.

2. The hearing proceeded over three days before the trial Judge in December 1991. On 13 March 1992, his Honour gave judgment for the applicant against the respondent in the sum of $4650 and made no order as to costs. However, in his reserved reasons for judgment extending over some 44 pages, his Honour substantially rejected the applicant's claim. The judgment for $4650 was given as a consequence of a finding by his Honour that the respondent had terminated the employment of the applicant prematurely by giving two months' salary in lieu of notice. His Honour found that a period of three months was a reasonable time. It should be noted in this respect that counsel for the respondent appearing before me today has indicated that this claim in his submission was not a matter that was ventilated before the trial Judge by the parties. Of course I say nothing on this matter save to note that the respondent has foreshadowed that if leave to appeal were to be granted, the respondent would itself wish to seek leave to cross-appeal in respect of this aspect of the matter.

3. For the sake of completeness, it should be noted also that the respondent, through his counsel, has indicated that if leave to appeal were to be granted, the respondent would also seek leave to cross-appeal out of time in respect of the order made for costs. As has been noted, the learned trial judge made no order as to costs. The respondent would wish to contend that since the claim dealt with by his Honour substantially failed, (it was a claim for a judgment in the order of a sum of $100,000) that costs should have followed the event, and that the applicant should have been ordered to pay its costs of the trial. Again, I do not, of course, express any view on this matter.

4. In support of his application, the applicant has filed two affidavits, which he has prepared himself. He has no legal training or experience, and some of the material in the affidavit does not appear to be strictly relevant. However, Mr Carter says - and this evidence is not challenged - that on 29 April 1992, he contacted the registry of the court indicating that he wished to appeal, and, at the same time, he applied to the Legal Aid Commission for assistance which was subsequently refused. As I have already said, the application itself was not actually filed until 25 June, which is more than three months after the time when the orders made by the trial Judge were made.

5. On behalf of the respondent, an affidavit has been read by its counsel. The affidavit is sworn by Mr Jardine, the respondent's solicitor, and annexed to that affidavit is a letter from the solicitors then acting for Mr Carter, dated 27 May 1992, stating that they had been instructed by Mr Carter to request payment of the judgment. By letter dated 2 June 1992, a cheque in the amount of the judgment was forwarded to the solicitors then acting for Mr Carter. Mr Carter has said in evidence before me today that he was not aware until to-day that his former solicitors had requested and subsequently received the amount of the judgment.

6. I have found this a difficult application. On the one hand, this is a final judgment and consequently if an appeal had been brought by Mr Carter within time, it would have been an appeal brought as of right. It is hard, as matters now stand, to identify any particular prejudice that would follow, so far as the respondent is concerned, if leave to appeal were granted provided appropriate conditions were attached to the grant of leave, and, in particular, provided a condition were attached that the respondent itself have leave to cross-appeal out of time.

7. The matter, for my purposes, really resolves itself into a rather narrow issue, and that is whether there is any reasonable prospect of success if the appeal were to proceed. As I have already indicated, his Honour gave a reserved judgment on a matter which, on any view, was complicated. The hearing extended over three days, as I have already mentioned. His Honour's judgment was given with the full reasons, and after judgment had been reserved for some months. A reading of the judgment indicates that a number of questions of fact and law appear to arise. Nonetheless, counsel for the respondent has strongly urged upon me that I should refuse leave on the footing that the appeal is, in effect, a frivolous one.

8. Faced with that submission, I feel there is only one course appropriate to be adopted in a case such as this, and that is to refer to a Full Court the present application.
This is a course sometimes taken in a case such as the present, where the only real issue on the application for leave to appeal is whether there is an arguable prospect of success on the appeal itself. I propose to order that the application for leave to appeal stand over for hearing before a Full Court and that there be heard at the same time any application for leave to cross-appeal brought by the respondent if so advised.

9. Two other matters arise. As I have indicated, Mr Carter appears in person. He says, and this is not disputed, that he cannot afford to retain professional representation in this matter, notwithstanding the complexity of the litigation and the issues which will presumably arise on any appeal.

10. It seems to me that the courts must address this as a problem which is not only important, but which is now being quite frequently encountered. The last annual report of the Federal Court of Australia contained a description of a scheme available in Western Australia to assist unrepresented litigants in complex litigation. In essence the scheme, which is promoted by the Law Society of Western Australia, provides a fund from which counsel may be retained for the purpose of settling a pleading in the case of first instant proceeding or a notice of appeal in the case of appellant work. The scheme does not extend to the provision of funding beyond that. In other words, the scheme is relatively modest in its operation and is confined to the drawing of pleadings for a notice of appeal.

11. I am not aware whether such a scheme or a similar scheme is in operation in Queensland or is contemplated, but it seems to me it is a matter which should be pursued as, in a case such as the present, it is essential in my view that a trained lawyer be retained to frame any notice of appeal. This is a task which is quite beyond Mr Carter, given his lack of professional qualifications or experience.

12. I therefore direct the Registrar to inquire whether there is a scheme similar to the Western Australian scheme for the assistance of unrepresented litigants in force in Queensland or in contemplation in this State, and if so, whether the benefit of that scheme is available here.

13. The second matter that I have already raised with the parties and I will mention again, is that, given the complexity of this litigation and the proportion of likely legal costs involved in relation to the amount of the claim assessed on a realistic basis, it seems to me that the parties should explore the possibility of mediation on the appeal. In this court we have procedures in place which are sometimes used for mediation at first instance. It seems to me that the court should also, especially in a case such as this, direct its attention to the possibility of mediation by a court Registrar being attempted at the appellant level also.