TOMKO v PALASTY (NO. 2) [2007] NSWCA 369 (14 December 2007)

Last Updated: 17 December 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: TOMKO v PALASTY (NO. 2) [2007] NSWCA 369


FILE NUMBER(S):
40021/07

HEARING DATE(S): 3 December 2007

JUDGMENT DATE: 14 December 2007

PARTIES:
John TOMKO – Appellant
John PALASTY - Respondent

JUDGMENT OF: Hodgson JA Ipp JA Basten JA

LOWER COURT JURISDICTION: Court of Appeal

LOWER COURT FILE NUMBER(S): CA 40021/07

LOWER COURT JUDICIAL OFFICER: Registrar Schell

LOWER COURT DATE OF DECISION: 3 September 2007


COUNSEL:
W G Muddle SC/I J Stanley – Appellant
G O Blake SC - Respondent

SOLICITORS:
Denis & Company – Appellant
Ziman and Ziman - Respondent

CATCHWORDS:
EXTENSION OF TIME – length of delay – reason for delay – whether applicant has fairly arguable case – prospects of success – prejudice to respondent[<br>][<br>]PROCEDURE – review of decision of Registrar to refuse extension of time to file cross-appeal – where primary appeal dismissed before hearing of review of Registrar’s decision – Supreme Court Rules 1970 (NSW), Part 51, r 18 [<br>][<br>]REVIEW – power to review decision of Registrar – exercise of discretionary powers – no requirement to demonstrate error in decision of Registrar – review not restricted to material before Registrar – [<i>Supreme Court Act</i>] 1970 (NSW), ss 46 and 121 – Uniform Civil Procedure Rules 2005 (NSW), r 49.19[<br>][<br>]WORDS & PHRASES – “at any time” – “cross-appeal” – “review”

LEGISLATION CITED:
[<i>Bankruptcy Act</i>] 1966 (Cth), s 296
[<i>Civil Procedure Act</i>] 2005 (NSW), Schedule 6, cl 9, Schedule 7
[<i>Supreme Court Act</i>] 1970 (NSW), ss 46, 75A, 119, 121
Supreme Court Rules 1970 (NSW), Part 51, rr 2, 5, 6, 18, 56, Part 61, rr 3, 4
Uniform Civil Procedure Rules, rr 36.15, 36.16, 45.20, 49.19

CASES CITED:
[<i>Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc</i>] [1981] HCA 39; (1981) 148 CLR 170
[<i>CDJ v VAJ</i>] [1998] HCA 76; (1998) 197 CLR 172
[<i>Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission</i>] [2000] HCA 47; (2000) 203 CLR 194
[<i>Colpitts v Australian Telecommunications Commission</i>] (1986) 9 FCR 52
[<i>Comalco Aluminium Ltd v Ohtsu Tyre & Rubber Co (Aust) Pty Ltd</i>] (1983) 8 ACLR 330
[<i>Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd</i>] (1991) 22 NSWLR 389
[<i>Commonwealth v Hospital Contribution Fund of Australia</i>] [1982] HCA 13; (1982) 150 CLR 49
[<i>Ellis v Leeder</i>] [1951] HCA 44; (1951) 82 CLR 645
[<i>Emmett v Hornsby Shire Council</i>] [2002] NSWCA 75
[<i>Gallo v Dawson</i>] [1990] HCA 30; (1990) 64 ALJR 458
[<i>Henderson v Henderson</i>] [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313
[<i>House v The King</i>] [1936] HCA 40; (1936) 55 CLR 499
[<i>In Re the Will of FB Gilbert (dec’d)</i>] (1946) 46 SR(NSW) 318
[<i>Jackamarra v Krakouer</i>] [1998] HCA 27; (1998) 195 CLR 516
[<i>Lawteal Pty Ltd v Ofo</i>] [2006] NSWSC 365
[<i>Palata Investments Ltd v Burt & Sinfield Ltd</i>] [1985] 1 WLR 942
[<i>Pioneer Park Pty Ltd (In liq) v Australia and New Zealand Banking Group Limited</i>] [2007] NSWCA 344
[<i>Port of Melbourne Authority v Anshun Pty Ltd</i>] [1981] HCA 45; (1981) 147 CLR 589
[<i>Preston v Harbour Pacific Underwriting Management Pty Ltd</i>] [2007] NSWCA 247
[<i>Re Brindle; Ex parte FB & FA McMahon Pty Ltd</i>] (1992) 35 FCR 506
[<i>Re Greenhill; Ex parte Pook</i>] (1988) 83 ALR 295
[<i>SAAP v Minister for Immigration and Multicultural and Indigenous Affairs</i>] [2005] HCA 24; (2005) 228 CLR 294
[<i>Strata Consolidated (Australia) Pty Limited v Bradshaw</i>] [2000] NSWCA 225
[<i>Tomko v Palasty</i>] [2007] NSWCA 258
[<i>Wentworth v Graham</i>] [2002] NSWCA 397; (2002) 55 NSWLR 638
[<i>Wentworth v Wentworth</i>] (1994) 35 NSWLR 726
[<i>Westpac Banking Corporation v Abemond Pty Ltd</i>] (NSWSC, 3 November 1994, unrep)
[<br>]Ritchie’s [<i>Uniform Civil Procedure NSW</i>], [SCA s 46.15]

DECISION:
(1) Dismiss the application to review the Registrar’s decision made on 3 September 2007.[<br>][<br>](2) Dismiss the application for an extension of time to appeal from the judgment and orders of the District Court.[<br>][<br>](3) Set aside subpoenas issued on behalf of Mr Palasty to the extent they remain unanswered.[<br>][<br>](4) Mr Palasty to pay Mr Tomko’s costs of the motion to review the Registrar’s decision and related applications disposed of by this judgment.


JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40021/07

HODGSON JA

IPP JA

BASTEN JA

14 December 2007

John TOMKO v John PALASTY (NO. 2)

Mr Tomko brought proceedings against Mr Palasty in the District Court, seeking to recover two amounts said to have been lent to Mr Palasty. In a judgment delivered by Gibb DCJ on 15 December 2006, Mr Tomko succeeded with his claim in relation to the second loan, but not the first. He appealed against so much of the judgment as denied his claim in relation to the first loan. Mr Palasty did not appeal.

Some months prior to the hearing of Mr Tomko’s appeal. Mr Palasty sought an extension of time in which to file a cross-appeal. His application was dismissed by the Registrar on 3 September 2007. Mr Tomko’s appeal was heard by the Court of Appeal on 17 September 2007 but the Court as then constituted was not informed of the attempted cross-appeal, nor was it informed of any intention to take steps subsequently taken by Mr Palasty on 25 September 2007 to appeal from the decision of the Registrar. The Court delivered judgment on 27 September 2007, dismissing Mr Tomko’s appeal. The present proceeding involves an application by Mr Palasty to review the decision of the Registrar not to extend time for filing a cross-appeal.

The Court held, dismissing the application

(per Basten JA, Hodgson and Ipp JJA agreeing)

1 Only a respondent to an appeal can bring a cross-appeal. Once an appeal is disposed of by a final judgment of the Court, there is no longer an appeal on foot and a cross-appeal cannot be filed: [2], [30].

2. The fact that a registrar is exercising the powers of a judge of appeal does not make her or him a judge of appeal within the meaning of s 46(4) of the Supreme Court Act 1970 (NSW). The power to review a decision of a registrar is properly found in s 121(3) of the Supreme Court Act and r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW): [4], [40].

Strata Consolidated (Australia) Pty Ltd v Bradshaw [2000] NSWCA 225, not followed.

Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247, referred to.

3. A review of a decision of a registrar is not an appeal subject to s 75A of the Supreme Court Act. A review does not require demonstration of error and is not restricted to a reconsideration of the material before the primary decision maker. Authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review. However, a court may be more inclined to intervene in relation to a decision which finally determines a party’s rights, or where fresh evidence, changed circumstances or error in the decision under review is demonstrated: [6], [10], [50], [52].

In Re the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318; Wentworth v Wentworth (1994) 35 NSWLR 726; Wentworth v Graham [2002] NSWCA 397; (2002) 55 NSWLR 638; Comalco Aluminium Ltd v Ohtsu Tyre & Rubber Co (Aust) Pty Ltd (1983) 8 ACLR 330, considered.

4. Mr Palasty failed to provide a satisfactory explanation for the delay in seeking to proceed with an appeal or cross-appeal: [80]. The Court cannot be satisfied that there would not be real prejudice to Mr Tomko if an extension of time were granted: [85].

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, considered.

5. Mr Palasty’s appeal was so closely connected to Mr Tomko’s appeal that it would be unreasonable to allow Mr Palasty to pursue his appeal in separate and subsequent proceedings. Even if the motion to review the decision of the Registrar were technically still on foot, the attempt to revive the application for an extension of time within which to cross-appeal after the hearing of the appeal, without advising the Court or Mr Tomko, at or before the hearing of the appeal, constituted an abuse of process: [90].

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, applied.

(per Basten JA, Ipp JA agreeing)

6. In an application for an extension of time, it is generally neither necessary nor appropriate for the applicant to do more than demonstrate a fairly arguable case: it is not necessary to demonstrate in any detail the prospects of success. However, in the present case reasonable prospects of success were demonstrated: [58].

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, applied.

(per Hodgson JA, Ipp JA agreeing)

7. Where a person is seeking an extension of time, there may be circumstances where it is appropriate to go further into the merits of the case than to ask whether or not the case is fairly arguable. If there is a reasonable explanation for delay and no great prejudice to the opponent, a fairly arguable case is sufficient. If the explanation for delay is less than satisfactory, or if substantial prejudice is shown, it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit: [14].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40021/07

HODGSON JA

IPP JA

BASTEN JA

14 December 2007

John TOMKO v John PALASTY (NO. 2)

Judgment

1 HODGSON JA: I agree with the orders proposed by Basten JA, and subject to what I say below, I agree substantially with his reasons.

2 I agree that it is only a respondent to an appeal who can bring a cross-appeal; and that once an appeal has been disposed of, there is no longer a respondent to the appeal. Accordingly, I agree that what Mr. Palasty now needs is an extension of time to bring an appeal.

3 In my opinion, the basis on which a registrar’s decision may be reviewed is still relevant. I do not think Mr. Palasty can now be in any better position than he would have been in if he had sought the relief he needed before the Registrar, which relief in any event differs more in form than in substance from the relief which he sought before the Registrar.

4 I agree that Strata Consolidated (Australia) Pty. Limited v. Bradshaw [2000] NSWCA 225, to the extent that it decides that s.46(4) of the Supreme Court Act 1970 applies in the case of a registrar exercising the powers of a judge of appeal, should not be followed. That was an ex tempore decision, in which there was no consideration of alternatives or of contrary argument; and in my opinion, it is open to a subsequent bench of three judges, in a reserved judgment and upon consideration of alternatives and contrary arguments, to express firm disagreement. In my opinion, the circumstance that a registrar is exercising the powers of a judge of appeal does not make him or her a judge of appeal within the meaning of s.46(4). He or she remains a registrar, whose decision is subject to review under s.121(1) of the Supreme Court Act and/or r.49.19 of the Uniform Civil Procedure Rules.

5 I agree that the view expressed by Basten JA in Pioneer Park Pty. Limited (In Liquidation) v. Australia & New Zealand Banking Group Limited [2007] NSWCA 344, on the basis of limited argument, that the review of a registrar’s decision with respect to an order for security for costs is constrained by the principles stated in House v. The King [1936] HCA 40; (1936) 55 CLR 499, is not strictly correct.

6 I agree that a review of a decision of a registrar is not an appeal, subject to s.75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.

7 In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

8 In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

9 In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

10 In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence.

11 I am inclined to think the same approach applies to the review of a decision of a single judge of appeal under s.46(4) of the Supreme Court Act.

12 I agree with Basten JA that the circumstances of delay and the deficiencies in the explanations offered are very powerful considerations against Mr. Palasty.

13 In my opinion, it is particularly significant that the Court hearing Mr. Tomko’s appeal was not informed of any proposal for an appeal or cross-appeal by Mr. Palasty. Such an appeal or cross-appeal, if it had any merit, would have raised possible faults in the judgment below which were not canvassed by Mr. Tomko’s appeal; and may have put the overall soundness of the judgment in quite a different light. Although the issues in Mr. Tomko’s appeal were different from those in Mr. Palasty’s appeal or cross-appeal, they relate to just one judgment concerning one set of circumstances with the same group of participants. In those circumstances, in my opinion it was quite wrong to seek dismissal of an appeal, without drawing the Court’s attention to the fact that there were aspects of the judgment that the respondent intended to attack as being unsound.

14 In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.

15 In the present case, Mr. Palasty may have had a point which could be regarded as being more than just fairly arguable, arising from the way the case was pleaded and the way the primary judge addressed the question of whether Mr. Palasty had shown that he had reasonable grounds for making a representation as to the future. However, the primary judge in her judgment referred to a statement of issues which raised the question, and we have been provided with no material about that statement of issues on which we could form any view as to whether or not it was provided in circumstances which were adequate to fairly put the matter before the Court. We have also not been provided with any material that would enable us to form even a prima facie view as to whether the judge’s approach to the question of evidence of reasonable grounds was erroneous, in the light of the way the case was conducted before her. In those circumstances, it is not possible for this Court to come to any view that Mr. Palasty has any more than a fairly arguable case.

16 In all these circumstances, a case is not made out for extending the time for the bringing of an appeal by Mr. Palasty.

17 IPP JA: Subject to the additional remarks of Hodgson JA (with which I agree), I agree with Basten JA.

18 BASTEN JA: On 15 December 2006 Gibb DCJ gave judgment in favour of Mr Tomko in proceedings brought by him against Mr Palasty in the District Court. In those proceedings, Mr Tomko had sought to recover two loans said to have been made to Mr Palasty. In the alternative to the claim in contract in relation to the second loan, Mr Tomko alleged an entitlement to damages in the amount of the loan, based on a misleading or deceptive representation made to him by Mr Palasty shortly before the second loan was advanced, to the effect that he, Mr Palasty, would organise for a mortgage to be given by the company which he controlled, which was purchasing land for development.

19 Mr Tomko appealed on the basis that he should have recovered the amount of the first loan, in addition to the amount which he recovered with respect to the second loan. Mr Palasty did not appeal.

20 Mr Tomko had argued in the District Court that he was entitled to recover the amount of each loan from Mr Palasty, on the basis that it had been made to Mr Palasty personally. The trial judge dismissed these claims, holding that both loans were made to a company controlled by Mr Palasty, and not to Mr Palasty. However, Mr Tomko succeeded in his claim with respect to misleading or deceptive conduct in relation to the second loan. He obtained a judgment against Mr Palasty in the amount of $480,852. Mr Tomko appealed against so much of the judgment as denied his claim in relation to the first loan. That appeal was heard by this Court on 17 September 2007. Judgment was delivered on 27 September 2007 dismissing the appeal with costs: see Tomko v Palasty [2007] NSWCA 258. Unbeknownst to the Court as then constituted, Mr Palasty had, some months prior to the hearing of Mr Tomko’s appeal, indicated a wish to cross-appeal in relation to the judgment against him in the District Court. That fact was not revealed to the Court as constituted to hear Mr Tomko’s appeal: see [2007] NSWCA 258 at [6]. However, as now appears, Mr Palasty had taken a number of steps, the details of which will be noted below, to obtain an extension of time within which to file a cross-appeal. A notice of motion seeking an extension of time in that regard was heard by the Registrar on 3 September 2007, 14 days before Mr Tomko’s appeal was scheduled for hearing. The Registrar dismissed the application.

21 No step was taken to review the decision of the Registrar until 25 September 2007, eight days after the hearing of Mr Tomko’s appeal. Two days later, on 27 September 2007 judgment was handed down dismissing Mr Tomko’s appeal. The present proceeding involves an application to review the decision of the Registrar not to extend time for filing a “cross-appeal”.

Preliminary issue

22 At a directions hearing on 23 November 2007, attended by counsel for both parties, the Court noted that the utility of the present application was open to doubt. There was no appeal on foot and the cross-appeal had not yet been commenced. Mr Palasty was invited to consider whether his application was in truth an application for an extension of time within which to appeal. The Court suggested that he might wish to consider his position in that respect so as to avoid yet further delay in the resolution of the outstanding issue. Further, the appeal having been dismissed, he was invited to consider whether the present application might be treated as an abuse of process, in a sense analogous to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; [1981] HCA 45; (1981) 147 CLR 589, Mr Palasty having allowed Mr Tomko’s appeal to proceed to final judgment without the determination of the issues he sought to raise in relation to the same judgment of the District Court.

23 On 30 November 2007 a further written submission was filed on behalf of Mr Palasty, addressing the issues raised at the directions hearing and, recognising the possibility that the motion seeking review of the Registrar’s decision, if brought in reliance on s 46(4) of the Supreme Court Act 1970 (NSW), was out of time, seeking an extension of time in which to seek review. No application was made to seek an extension of time within which to appeal.

24 Mr Blake SC, for Mr Palasty, contended that it was still open to Mr Palasty to cross-appeal for three reasons, although it is not entirely clear whether they were cumulative or independent of each other. The first asserted that, because an extension of time had been sought before Mr Tomko’s appeal was dismissed, there remained “a judicial function to perform”. Secondly, it was contended that, because the rules imposed no limit on the time within which this Court could extend time to cross-appeal, there was no limit and the fact that the primary appeal had been dismissed should not be treated as an implied limitation on the power. Thirdly, perhaps supportively of the first reason, or in recognition of the possibility that it might be necessary to reopen the Court’s appeal judgment, it was noted that the earlier judgment had not been entered.

25 The provisions relating to cross-appeals are contained in Supreme Court Rules 1970 (NSW), Part 51, r 18 and read as follows:

“18 (1) Where a respondent to an appeal from any decision wishes to cross-appeal from the whole or any part of the decision and is entitled to do so as of right, he or she shall file and serve on each necessary party a notice of cross-appeal.

(2) A notice of cross-appeal must be filed and served by a respondent within the earlier of:

(a) 14 days after service on the respondent of a notice of appeal with or without appointment;

(b) 14 days after leave to cross-appeal is given; or

(c) such extended or abridged time as the Court of Appeal may fix.

(3) Subject to subrules (1), (2), (4) and (5), the provisions of these rules relating to a notice of appeal apply to a notice of cross-appeal.

(4) Rules 5 and 6(2)-(4) do not apply to a cross-appeal.

(5) Times in rules 42(4) and (5) and rule 47(1) shall run from the date of filing of the notice of appeal with appointment rather than the date of filing of the notice of cross-appeal with appointment.”

26 There is a question as to the date by which the notice of cross-appeal should have been filed and served. Rule 18(2) identifies at least four possible dates, being 14 days after service of a notice of appeal without appointment; 14 days from service of a notice of appeal with appointment; 14 days after a grant of leave to cross-appeal, or by the date fixed by the Court. Reference in sub-r (2) to “the earlier of” those dates is inapt; if it had referred to the “earliest” then the notice of cross-appeal was required by 23 January 2007. Because time was not sought to be abridged, nor was leave required, the only other relevant date was the date on which the notice of appeal with appointment was filed and served, 14 days from which date would have been 19 April 2007.

27 Apart from the question of time, there is a separate issue as to whether a notice of cross-appeal without appointment could properly be filed pursuant to r 18. Because the provisions of the rules relating to notices of appeal apply to notices of cross-appeal (sub-r (3)) r 6(1), providing for a notice of appeal with or without appointment, is applicable. For reasons which will be noted below, it is highly implausible that the rules contemplated that a notice of cross-appeal without appointment (allowing a further three months within which to file a notice of cross-appeal with appointment) was contemplated as a process available after a notice of appeal with appointment had been filed. The better view is that Mr Palasty was required to file a notice of cross-appeal without appointment within 14 days after service of the notice of appeal without appointment and, if he did not wish to avail himself of that liberty, then he was required to file within the same time a notice of cross-appeal with appointment. He did neither.

28 Part 51, r 5 provides that the Court may extend time for an appeal “at any time”: r 5(4). Sub-rules 6(2)-(4) deal with the situation where a notice of appeal without appointment has been filed and served, allowing a three month period, which cannot be extended. An appeal which is automatically treated as discontinued on expiration of the three month period can only be reinstituted by seeking an extension of time under r 5.

29 The requirement for an appellant to file a notice of appeal with appointment within three months after filing one without appointment is contained in r 6(2). The discontinuance which follows a failure to comply with r 6(2) is found in r 6(4). Those provisions do not apply in relation to a cross-appeal: r 18(4). Whether that means that there is no provision for a cross-appeal without appointment or whether there is simply a lacuna in relation to what happens when a cross-appeal without appointment is not followed by a cross-appeal with appointment need not be resolved. However, it is clear from the provisions relating to call-over times that a cross-appeal without appointment cannot be filed after a notice of appeal with appointment: see r 18(5).

30 It is also clear from the language used consistently in Part 51 that the moving party on an appeal is an ‘appellant’ and the other party is the ‘respondent’. Only a “respondent” can commence a cross-appeal: r 18(1). No person is aptly so described unless there is an appeal on foot. Once an appeal is disposed of by a final judgment of the Court, there is no longer an appeal on foot for the purposes of the rules relating to cross-appeals.

31 Although questions of costs may be dealt with after judgment has been delivered, judgments may in certain circumstances be set aside (see Uniform Civil Procedure Rules, 36.15 and 36.16) and applications for particular orders setting aside a judgment or seeking variation of a costs order may be made by a motion entitled in the appeal, it does not follow that the appeal proceedings are on foot for other purposes. Nor does the fact that the respondent had filed an application for extension of time before judgment was delivered allow a different conclusion. There may well be steps taken in a proceeding which have not been followed to fruition, such as the issue of a subpoena not called on. Unless the judgment is reopened, those steps should be taken as having lapsed, because they no longer have utility.

32 In the present case, there is no longer any appeal on foot and there is no application to reopen the judgment in Mr Tomko’s appeal. For that reason the present motion should be dismissed. However, and despite not having availed himself of the opportunity to seek such relief in the alternative before the hearing of the present motion, Mr Palasty did seek, as a fall-back position, leave to apply for an extension of time within which to file an appeal. Despite failure to comply with the formalities, that application should be treated as having been made and any formalities waived.

Nature of challenge to decision of Registrar

33 If the conclusion reached above is correct, there is no occasion to consider the power of review of the decision of the Registrar. However, the matter was fully argued and in case the conclusion reached above is thought to be wrong, it is appropriate to address the question.

34 The real issue in this regard is the scope of the available challenge to a decision of the Registrar on an interlocutory application or, from the point of view of the Court, the proper approach to be adopted by the Court in considering a challenge. The starting point in seeking to address that question is the source of the Court’s power.

35 Part 8, Division 2 of the Supreme Court Act provides for the appointment of Registrars, including the Registrar of the Court of Appeal: s 119(1). Section 121 makes provision in relation to powers and other matters, in the following terms:

“121 (1) In this section officer means a registrar, taxing officer, or other officer of the Court.

(2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer.

(3) A judgment given or an order made by an officer may be set aside or varied by the Court.

(4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer.

(5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2).”

36 Under the Supreme Court Rules 1970 certain powers are conferred on the Registrar, subject to exceptions not presently relevant, by adoption of the powers conferred on a judge of appeal by sub-ss 46(1) and (2) of the Supreme Court Act. Those powers include orders “concerning the institution of an appeal” or any other order “in any appeal”, not involving the determination or decision of the appeal: s 46(2). It was not disputed that the powers thus conferred on the Registrar included the power to grant or refuse an extension of time within which to file a cross-appeal.

37 There may be an issue as to whether ss 121(3) and 46 permit a judge of appeal to deal with an application to set aside or vary a judgment given by the Registrar of the Court of Appeal. Part 61, r 4 may have that effect. Mr Palasty contended that it did, because, pursuant to the transitional provision in Schedule 6, cl 9 of the Civil Procedure Act 2005 (NSW) the reference in Part 61, r 4 to powers of the Court “under this Part” included the corresponding provisions in the Uniform Civil Procedure Rules 2005 (“the UCPR”), the otherwise relevant provisions of Part 61 having been repealed. At least since the amendment to UCPR r 49.19 on 7 September 2007, it is apparent that the power given by that rule is a corresponding provision to the repealed Part 61, r 3. In any event, that question is of no present relevance, given the constitution of the Court. However, the terms of r 49.19 are significant and should be noted:

“49.19 If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise as the court thinks fit.”

38 The alternative source of power was that said to arise under s 46(4) of the Supreme Court Act which provides:

“46 ...

(4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.”

39 Although s 46(4) makes no reference to a judgment or order of a registrar, there is authority for the proposition that it extends to such a decision because the powers of the registrar are identified by reference to the powers conferred on a judge of appeal sitting alone. In Ritchie’s Uniform Civil Procedure NSW, the note at [SCA s 46.15] indicates that the judgment of Sheller JA in Emmett v Hornsby Shire Council [2002] NSWCA 75 is authority for the proposition that the power to review a decision of a registrar arises under s 46(4). That is not so. His Honour relied upon Part 61, r 4 as the source of power to review the decision of the Registrar dismissing an appeal for want of prosecution.

40 Authority for the proposition that s 46(4) permits review of the decision of a registrar, because he was exercising powers identified under Part 51, r 58 as the powers of a judge of appeal, may be found in Strata Consolidated (Australia) Pty Ltd v Bradshaw [2000] NSWCA 225 (Heydon JA, Sheller and Beazley JJA agreeing) at [3]. However, the logic of that position is not self-evident: s 46(4) does not confer on the Court a power to discharge or vary a judgment or order made in relation to the subject matter of sub-ss (1) and (2), but rather orders made by a judge of appeal. The fact that the powers of a registrar are identified by reference to the subject matter of s 46(1) and (2), does not make a decision by a registrar in respect of such a matter a decision of a judge of appeal. I noted doubts as to the logic of Strata Consolidated in that respect in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [7] (Hoeben J agreeing, Ipp JA expressing no opinion). In the present case Mr Palasty invited this Court to conclude that Strata Consolidated was wrongly decided in that respect and that the relevant power to review a decision of the Registrar does not arise under s 46(4). In my view, that submission should be accepted.

41 The present relevance of the source of power derives from the consequences said to flow from the source. In Wentworth v Wentworth (1994) 35 NSWLR 726 this Court considered an application to discharge or vary an interlocutory order restraining certain dealings in shares pending determination of an appeal. The reasons of the Court were variously expressed by Mahoney, Handley and Powell JJA, but broadly speaking adopted the principles of constraint applicable in relation to discretionary interlocutory decisions, in accordance with House v The King [1936] HCA 40; (1936) 55 CLR 499; In Re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; [1981] HCA 39; (1981) 148 CLR 170: see, eg, Handley JA at 733. Because that approach had been adopted in relation to review of a decision of a judge of appeal sitting alone, pursuant to s 46(4), the Court held in Strata Consolidated that the same principles must apply in relation to review of a decision of a registrar, because that review arose under s 46(4): at [3], per Heydon JA.

42 It does not follow that, because the right of review is properly found in s 121(3) and r 49.19, rather than s 46(4), that the principles governing the review are not those stated in Strata Consolidated. Thus, although the point was not argued, this Court suggested in Pioneer Park Pty Ltd (In liq) v Australia and New Zealand Banking Group Limited [2007] NSWCA 344 at [28] that the differences in language between the three provisions did not suggest any differences in the scope of review. The relevance of those principles of constraint are, however, expressly called into question by Mr Palasty in the present matter and should accordingly be addressed. The first step in the argument is to note that none of the relevant provisions uses the term “appeal”. In particular, r 49.19 provides that the Court may “review” the order of the Registrar. As originally enacted, UCPR Part 49 (then Part 45) included procedures for applications for review in Division 5 which tended to equate a review with an appeal and, indeed, used the term “appeal”: see, eg, r 45.20(2), as enacted in Schedule 7 of the Civil Procedure Act. These references were removed by the Uniform Civil Procedure Rules (Amendment No. 15) 2007, published on 7 September 2007: Government Gazette No. 116, p 6934. Consistently, Part 51 of the Supreme Court Rules, which uses the term “appeal” to refer to an appeal from a decision in proceedings in the Court expressly excludes “an application for the variation or discharge of an order of a judge of appeal or of the Registrar”: r 2(4), although that language picks up the language of s 46(4) and Part 51, r 56.

43 The term “review” may be said to have “a quite amorphous meaning” as noted by Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63-64. The meaning will often depend upon the statutory context. In Re Greenhill; Ex parte Pook (1988) 83 ALR 295, Gummow J thought that the term had been deliberately used in the Bankruptcy Act 1966 (Cth) rather than the term appeal “with an eye to the complex history that has attended the question of the exercise of the judicial power of the Commonwealth other than by judges”: at 296(50) referring to Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49 at 63-64, to which may now be added reference to Harris v Calladine [1991] HCA 9; (1991) 172 CLR 84. In federal jurisdiction, a review is taken to mean a re-examination of a matter afresh, not limited to reconsideration of the material before the primary decision-maker: see Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 at 509 (Hill J). It may be found to have a similar meaning in an administrative context: see, eg, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [199] (Hayne J).

44 In Comalco Aluminium Ltd v Ohtsu Tyre & Rubber Co (Aust) Pty Ltd (1983) 8 ACLR 330, McLelland J held that a review of a registrar’s decision to dismiss a summons for the winding up of a company, could be by way of a hearing de novo, on evidence a substantial part of which had not been before the registrar. McLelland J referred to his earlier decision of 12 September 1983 (unreported) in which he considered the principles on which an application to review the decision of a registrar should be approached. However, that decision was largely limited to the question whether the review was a form of appeal subject to s 75A of the Supreme Court Act, or whether it should be treated as a de novo hearing, not subject to such constraints. His Honour considered that a review under Part 61, r 3 was not an “appeal” and therefore approached the matter in the way described in the reported judgment.

45 A similar approach has been generally adopted in the Divisions in this Court: see particularly the judgment of Hall J in Lawteal Pty Ltd v Ofo [2006] NSWSC 365 at [57]- [60]. The views expressed in a number of the unreported decisions referred to by his Honour are succinctly summarised by Santow JA in Wentworth v Graham [2002] NSWCA 397; (2002) 55 NSWLR 638 at [9] stating, after referring to his own earlier decision in Westpac Banking Corporation v Abemond Pty Ltd (NSWSC, 3 November 1994, unrep):

“... [T]he consideration that the registrar’s decision involves a matter of practice and procedure remains a relevant consideration in the exercise of the power of review. Accordingly, it is proper for the court to exhibit a natural inhibition against the unrestrained substitution of the reviewing court’s views in a matter of practice and procedure for those of the original tribunal.”

46 That a “review” of the decision of the registrar pursuant to r 49.19 is not an appeal means that principles of restraint expressly adopted in relation to appeals do not, in terms, apply: c.f. Wentworth v Wentworth at [41] above. Further, the requirement to demonstrate error, which is an essential part of the appellate process, is also not applicable: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [14] and CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 at [111]. To introduce those constraints as applicable in the case of a procedure identified expressly as a “review” would be to impose constraints inconsistent with the language of the rule.

47 Nevertheless, the policy identified by Jordan CJ in In Re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318 at 323 has force. In referring to appeals in respect of points of practice or procedure, his Honour stated:

“... [I]f a tight reign were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

48 That is no doubt a factor which may be taken into account on a review, but it must bear a good deal less weight than on an appeal if the process of review is not to be subverted. Even in relation to an appeal, as Jordan CJ noted in Gilbert, a distinction should be drawn between “an exercise of so-called discretion which is determinative of legal rights” and a simple matter of practice and procedure, a distinction approved in Ellis v Leeder [1951] HCA 44; (1951) 82 CLR 645 at 653 (Dixon, Williams and Kitto JJ).

49 A further factor which might influence the way in which a review was permitted to be conducted in this Court is the fact that, sitting as an appellate court, it is ill equipped to hear oral evidence, especially if it is likely to be extensive. However, that concern does not arise in the present case because, although further evidence was tendered, it was in documentary form and was received largely without objection. Consistently with a process of review, it was also appropriate for the parties to re-tender the material which had been before the Registrar. If there are circumstances in which the Court might seek to limit the tender of further material, they did not arise in the present case and need not be considered further.

50 It follows, in my view, that Mr Palasty was correct in contending that the matter must proceed by way of review; that s 75A of the Supreme Court Act is inapplicable; that he was under no obligation to demonstrate error on the part of the Registrar, and that the Court must exercise its own discretion on the material before it.

51 To the extent that that approach is inconsistent with earlier authority, and particularly Strata Consolidated and Wentworth v Wentworth, that authority should not be followed. Because the approach adopted in those cases was explicitly based upon a jurisdiction invoked under s 46(4), rather than Part 61, r 3 or its corresponding provision in the UCPR, r 49.19, it provides only indirect authority with respect to the scope of the rule. Although the approach now proposed is also inconsistent with the approach adopted in Pioneer Park, the challenge to Strata Consolidated mounted by the respondent Bank in that case relied only upon the proposition that it was inconsistent with the investiture of federal jurisdiction: at [40].

52 It follows that the proper approach to an application in relation to a decision of the Registrar is as follows:

(1) the application should be treated as a “review”, pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19;

(2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;

(3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review;

(4) nevertheless, similar policy considerations may arise in relation to a review, including:

(a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement;

(b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and

(c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review.

53 Although on review this Court should exercise afresh the power to extend time, it does not follow that the reasoning of the Registrar should be ignored, or that variations in the material presented to him and the evidence adduced in this Court are irrelevant. However because the matter now before this Court must be treated as an original application for an extension of time within which to appeal, arguably those matters should be entirely put to one side. As a result of the reluctance of Mr Palasty to embrace an application in this form, little attention was paid to these issues. The preferable course is to put them to one side and treat the matter as an application for leave to appeal out of time.

Merits of application

54 The first step in considering this matter is to identify the power under which the Court is invited to act. The relevant limitation is that contained in Part 51, r 5(1), requiring that an appeal be instituted within 28 days after the date of judgment in the Court below. This Court is entitled to extend time under sub-r (1) “at any time”. That is in contrast to the power of the Court below to extend time only on application made within 28 days of its own decision. Accordingly, this Court has the power to make the order sought.

55 The approach to such an application requires acknowledgment of the proposition that “the respondent to the application has a vested right to retain the judgment” which is proposed to be the subject of appeal: see Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [4] (Brennan CJ and McHugh J). In such cases, consideration must be given to four factors of general relevance, namely:

(1) the length of the delay;

(2) the reason for the delay;

(3) whether the applicant has a fairly arguable case, and

(4) the extent of any prejudice suffered by the respondent to the application:

see Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946, referred to with approval, in such a context, in Jackamarra at [6]-[7].

56 Speaking more generally, Kirby J noted that there might be other factors relevant to the grant of an extension of time in particular cases. As his Honour stated, after reference to the factors identified in Palata Investments, at [66] (7):

“But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.”

57 Each of the judgments in Jackamarra affirmed the need, at least on an application for an extension of time within which to lodge an appeal, to take account of the prospects of success. The appropriateness of that course was not in dispute in the present proceedings. On the other hand, it may be necessary to consider whether demonstrating an arguable case is simply a precondition to the grant of an extension of time or whether the demonstration of a stronger case constitutes a positive element to be put in the balance against aspects of delay or default.

58 There is a danger in placing too much emphasis on the prospects of success: to do so invites the parties to treat the application as a dress rehearsal for the full appeal: see Jackamarra at [9]. In my view, it is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case: it was not necessary nor appropriate to demonstrate in any detail the prospects of success. For present purposes it is sufficient to say that a number of grounds are fairly arguable and one at least has reasonable prospects of success.

59 The factors which weigh against a grant of further time in the present case are the length of the delay, the failure to adequately explain the delay and the prejudice suffered by Mr Tomko. Each of these will be briefly addressed below. However, there is a further and significant feature of this case which weighs heavily against an extension of time, namely the fact that Mr Tomko’s appeal was allowed to proceed to a hearing and then judgment without the Court being advised of any outstanding application by Mr Palasty to challenge the judgment below.

60 The length of delay may be assessed in two ways. If Mr Palasty had been minded to appeal against the judgment of 15 December 2006, he had 28 days within which to appeal, or if in doubt as to the propriety of an appeal, to file and serve what is known as a “holding appeal” or, as identified in the rules, an appeal without appointment. He would then have had a further three months to consider whether or not to proceed. (That was the process adopted by Mr Tomko.)

61 If Mr Palasty had decided to appeal, he was required to file a notice of appeal with or without appointment by 12 January 2007. If he had filed a notice of appeal without appointment, he then had a further three months within which to file a notice of appeal with appointment, which would have allowed him until 12 April 2007. If, on the other hand, Mr Palasty had sought to exercise a right of cross-appeal, then he was required to commenced his cross-appeal either by 23 January 2007, being 14 days after Mr Tomko filed his notice of appeal without appointment, or, at the latest, by 19 April 2007, being 14 days after Mr Tomko filed his notice of appeal with appointment. On any view, his first attempt to commence a cross-appeal was four months out of time.

62 The first formal step taken in an attempt to cross-appeal was the service on 20 August 2007 of a motion seeking an extension of time. Even in that respect, Mr Palasty had stumbled, because, although the motion was filed on 7 August and was returnable on 20 August, it was not served until 20 August and accordingly the application was stood over for hearing on 3 September 2007, when the motion was dismissed by the Registrar.

63 In seeking to explain the delay, Mr Palasty’s solicitor, Mr Derek Ziman filed an affidavit dated 18 August 2007 sworn, it may be observed, only two days before the return date on the motion. Mr Ziman stated that he had first become aware of the matter on 15 February 2007 when contacted by Mr Palasty in relation to bankruptcy proceedings. Although he was apparently not served with a bankruptcy notice until five days later, Mr Palasty was apparently aware of Mr Tomko’s intention prior to receipt of the notice. Part of the conversation recounted by Mr Ziman involved the following statement by Mr Palasty:

“How can Tomko bankrupt me when he is appealing the decision? Surely it is not final until after the appeal?

...

I want to cross-appeal. I’ll pay the full amount into Court in the meantime if necessary. I want you to brief Alex Radojev to apply for a stay of the judgment.”

64 At that stage, Mr Ziman was aware that another solicitor, Roland Barros, had been acting for Mr Palasty in the District Court proceedings. Mr Ziman stated that on 12 March 2007 Mr Barros had sent him the pleadings in the District Court and a copy of a notice of appeal without appointment. Mr Barros, however, appears to have continued to act in relation to the appeal until 2 April 2007, when he stated that his instructions had been withdrawn: letter to Mr Ziman of 4 April 2007. On 5 April Mr Ziman received a copy of the notice of appeal with appointment from Mr Tomko’s solicitors, Dennis & Co. This, he stated, he immediately sent to Mr Palasty by email, noting that the call-over date was 24 May and requesting that he call “urgently” to arrange a meeting to discuss the matter. The email also sought instructions to send a copy to “Alex”, presumably Mr Radojev, although Mr Ziman did not say whether he had briefed Mr Radojev, and if so when.

65 Mr Palasty had apparently told Mr Ziman in early April that there was a dispute with Mr Barros over fees. Mr Ziman’s affidavit confirmed the dispute and noted that he had not obtained the files from Mr Barros until the fees sought had been paid (under protest), the files being delivered on 28 May 2007. Mr Ziman also stated that he sent the red appeal book to senior counsel, asking for advice on the grounds of a possible cross-appeal, on 14 June 2007. On 3 July he wrote to Mr Tomko’s solicitor seeking consent to file a cross-appeal out of time.

66 Mr Tomko’s solicitor, Mr Dennis, replied on 6 July noting that no appearance had yet been served on him in relation to the appeal, on behalf of Mr Palasty. He also advised that his client refused consent to the request to file a cross-appeal out of time.

67 Mr Ziman stated that he received advice from senior counsel to pursue a cross-appeal, together with a draft notice of cross-appeal, on 16 July 2007. On 17 July, a copy of the draft notice was sent to Mr Dennis for him “to consider”. It may have been intended that this constitute a further request for consent to filing of the notice out of time and, when no response had been received by 3 August, Mr Ziman wrote again. That request received a reply of the same date reiterating opposition and asking:

“Why has your client left this matter for so long?”

68 There was no response to that inquiry but on 20 August 2007 Mr Fagan, a solicitor in the employ of Dennis & Co noted that on 20 August 2007 a copy of the notice of motion seeking an extension of time was received, under cover of a letter dated 14 August 2007. On the same day, Dennis & Co responded noting that the copy of the motion had been received some two hours after the time for its hearing and without any supporting affidavit.

69 There was further correspondence between Dennis & Co and Mr Ziman, but it was (understandably) not attached to Mr Ziman’s affidavit of 18 August 2007: no further affidavit was prepared by Mr Ziman.

70 At that stage, it may be remarked that the explanation for the delays which had occurred and were continuing to occur was far from complete. No evidence had been filed from Mr Palasty himself and no evidence from Mr Barros, although it may be inferred that he and Mr Palasty were no longer on amicable terms.

71 When the matter came before this Court, an affidavit sworn by Mr Palasty on 18 October 2007 was read on his behalf. The affidavit raised a number of issues. Thus paragraphs 5 and 6 identified health problems.

“5. Throughout the trial I had health problems relating to my cardiovascular system. At one stage I was admitted to Baulkham Hills Private Hospital. There, my treating doctors identified a blockage in one of my arteries. It required an invasive operation.

6. As I recall it steps were taken in early October for the appointment of a tutor to protect my interests. On 23 October 2006 my direct involvement in the trial of this matter ceased. I had been hospitalised (NorthSide Clinic) overnight on 22 October and remained there for between two and three weeks. I was diagnosed with severe depression.

7. Following the conclusion of the hearing I remained under the care of a psychiatrist – Dr Joe Dunn. I saw him weekly for around three months, trying different types of medication. Finally we settled on Luvox, which stabilised my depressive episodes.”

72 The evidence as to Mr Palasty’s health was not supported by any medical report, nor stated with any precision as to dates of his apparent incapacity. Despite the fact that he was successful with respect to at least half (if not more) of the issues raised at trial, he was ordered to pay the plaintiff’s costs. Further, her Honour made an order in the following terms:

“I order that the defendant (as was) pay the costs incurred and thrown away by reason of his inability to testify or otherwise to advance his case because of illness, relevantly on and from the adjournment on Wednesday, 23 August 2006.”

Her Honour also noted, in an introductory passage to her reasons:

“Mr Palasty collapsed during cross-examination such that, after a series of adjournments, the proceedings were continued with the defendant represented via his tutor, Judith Katerine Palasty, who was appointed by Justice Young in separate proceedings, and took carriage of the matter on Monday, 23 October 2006.”

73 Despite this material, no complaint was made in the draft notice of cross-appeal of any lack of procedural fairness at the trial and it must be assumed that whatever arrangements were made to cope with Mr Palasty’s health problems were appropriate. Although the evidence did not condescend to such detail, it may be noted that the proceedings in the District Court ran from 21-24 August, from 18-22 September and from 23-24 October 2006. It should also be noted that the draft document which was the subject of the application for an extension of time, although headed “Notice of Cross-Appeal”, did no more than identify the dates of the proceedings and the grounds of appeal. Not only are the formal parts not completed, but, more significantly, no orders were included. The grounds contain no complaint based on Mr Palasty’s problems during the trial.

74 The problems which caused Mr Palasty to be admitted to hospital apparently continued until approximately mid-November. Thereafter the only evidence of health problems is a period of weekly appointments with a psychiatrist which may have continued to mid-February 2007: his affidavit is too vague for any precise dates to be identified. He stated that following publication of the judgment in December 2006, “I formed the attitude that I had to be very careful about an appeal”. There is a clear implication that he gave consideration to an appeal at that time. What he does not say, however, is that he was incapacitated or significantly disabled by ill-health during the period following delivery of judgment on 15 December 2006.

75 The affidavit continued:

“While I was seeing my psychiatrist I was going to work – at 22 Hunter Street, Parramatta – on an irregular basis. Until about April 2007 I had difficulties dealing with family matters, and going out with my family. I had great difficulty addressing the commercial matters that I had been involved in for a number of years. I stopped drinking alcohol for around 8 months following the hearing. My doctor in Chatswood (Dr Flood, a heart specialist) told me my heart condition meant I should avoid stress. I remember being scared through the opening part of 2007 about having a relapse and returning to suicidal thoughts and actions, which had begun to occupy my mind while I was at Baulkham Hills Private Hospital.”

76 Mr Palasty then referred to the email of 5 April 2007 from Mr Ziman and stated that at about that time he had begun to work “full weeks” at his office. He stated that there were seven full-time staff in the office and that he “resumed ultimate responsibility for projects emerging from that office of which he identified “six major projects”. One project, which was at a nearby address in Parramatta, involved a four-level office development. Three others involved travel to sites at or near Goulburn and a fifth was an industrial development in St Marys. Mr Palasty also stated:

“In the first half of 2007 I received around 50 email messages each day. Additionally, many of the emails addressed to other office staff needed my review and response.”

77 Mr Palasty referred to a fee dispute with Mr Barros, of which he said he became aware on 17 April, which resulted in payment of the fees “under vehement protest” on 25 May. However, it seems unlikely that that dispute was a surprise to him. Mr Ziman had recounted the conversation of mid-February 2007 in the course of which he had offered to attempt to mediate the dispute between Mr Palasty and Mr Barros, to which Mr Palasty had responded:

“No. There will be a dispute over fees I have been charged over a long period.”

78 Taken as a whole, this evidence is almost wholly silent as to the following matters:

(a) what advice, if any, Mr Palasty obtained in relation to the possibility of appeal in December 2006 – January 2007;

(b) what instructions, if any, he gave to his then solicitor, Mr Barros, in relation to an appeal, prior to withdrawing instructions on 2 April 2007;

(c) what advice he obtained and what instructions he gave, when served with a bankruptcy notice based upon the judgment debt, on 20 February 2007;

(d) what instructions he gave in relation to obtaining a stay of the judgment;

(e) whether Mr Radojev (or other counsel) was briefed to advise in relation to the appeal and a possible cross-appeal before 14 June 2007; and

(f) what advice he received, if any, in relation to the matters which were required to be addressed in support of an application for leave to cross-appeal out of time.

79 Counsel for Mr Tomko submitted that, to the extent that Mr Palasty failed to address relevant matters in his evidence and in that obtained from his solicitor, Mr Ziman, it should be inferred that the missing evidence would not assist him: see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA). What seems clear is that the delay was not caused by inadvertence (he referred to his “attitude” that he should be “very careful” in relation to an appeal, in December 2006; Mr Ziman referred to his statement that he wanted to cross-appeal, on 15 February 2007) nor to his lack of access to legal advice (until 2 April 2007 Mr Barros and, from 15 February 2007, Mr Ziman were receiving instructions from him) nor to any specific degree of incapacity to make a decision due to ill health. Further, on 13 March 2007 Mr Ziman swore an affidavit in the Federal Court bankruptcy proceedings, as solicitor for Mr Palasty stating that he “has given notice of an intention to appeal the relevant judgment”. (That assertion was not supported except by reference to his conversation with Mr Palasty.) The affidavit also stated that it was settled by counsel for Mr Palasty, though not counsel briefed (or to be briefed) in relation to the appeal. In those circumstances, Mr Tomko submits that the Court should infer “a conscious decision by Palasty not to seek a review until after he learned that Tomko’s appeal had not been well received by the Court”.

80 In these proceedings, Mr Palasty seeks an indulgence by way of an extension of time. It is not in dispute, nor could it be, that he bears a burden of persuading the Court that there are proper grounds to grant his request: see Jackamarra, 195 CLR 540 (Kirby J). He does so in circumstances where an extension of time will “put at risk a vested right of” Mr Tomko. It is sufficient for present purposes to conclude, therefore, that he has failed to provide any satisfactory explanation for the delay in seeking to proceed with an appeal or a cross-appeal. There are a number of adverse inferences which might be drawn, short of a deliberate manipulation of the system. One might be genuine vacillation on Mr Palasty’s part, possibly caused in part by ill-health and partly by a reluctance to commit further funds to the litigation. Another explanation might in part be the failure of his legal advisors to appreciate the importance of adhering to timetables in relation to litigation. There may be other competing inferences. In the absence of any need to choose a preferable explanation, there is no need to make such a finding.

81 This evidence may be compared with that considered by McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458. In some respects, that case is distant from the present. First, the applicant required an extension of the 21 days permitted for an appeal from a single judge in the High Court, by a period of more than 16 months. The present applicant requires an extension of some months, but not of that order. Secondly, Ms Gallo’s claim was doomed to fail: at p 460. Nevertheless, in one respect the assessment undertaken by McHugh J is pertinent. Thus, although the applicant was not legally represented, she did not assert that she was unaware of the 21 day time limit. His Honour stated (at p 459, col 2):

“Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal. I doubt that I would have considered the applicant’s explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal ... even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. ... It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.”

Those comments apply with greater force in the case of a party with ready access to legal advice through existing legal representation.

Prejudice to Respondent to application

82 When the courts speak of a vested right in a judgment, they refer, in a circumstance such as the present, to an enforceable right to payment of a judgment debt. Again for reasons which were never explained, Mr Palasty did not seek a stay of the judgment but simply failed to make payment, even when served with a bankruptcy notice. Accordingly, Mr Tomko has been kept out of his money, without legal excuse, for a period of almost one year by the date of hearing of this application. Although he apparently told his solicitor in February that he would pay the money into Court, he did not do so.

83 Before the Registrar, Mr Tomko asserted prejudice based on the fact that he was incurring interest charges in the range of $4,800 to $5,700 per month on a bank facility arranged to allow him to make the advances which were the subject of the dispute. His house was mortgaged to secure the bank facility and was at risk. His wife earned a livelihood as a personal trainer, with a purpose-built gym in the family home, which was therefore also at risk. Mr Palasty’s response was to issue subpoenas to the National Australia Bank seeking information in relation to the banking facilities provided to Mr Tomko; to Mr Tomko’s wife, seeking documentation relating to her business and to the Mosman Council, seeking material relating to any permission to allow Mr Tomko’s wife to operate her business from her home. Mr Tomko filed a motion seeking to set aside the subpoenas, which is also before this Court, but which has been rendered moot, by agreement that, in the circumstances, there is no utility in pursuing the material sought to be obtained. The issue of the subpoenas was, nevertheless, indicative of an inclination to cast doubt on, rather than meet, potential prejudice.

84 In apparent recognition of the strategic risks involved in challenging the factual premises on which prejudice was alleged, by letter dated 10 October 2007, Mr Ziman advised that his client was prepared, without prejudice, “to effect payment of the monthly mortgage costs in respect of that portion of the mortgage that would have been paid” had there been no cross-appeal. Mr Palasty also offered “to effect payment of the costs of your client’s counsel for the hearing of the cross-appeal”, presumably to meet a complaint that because the appeal and the cross-appeal could no longer be heard together, additional costs would be incurred. Despite that offer, there was no evidence that anything was done to give effect to the proposals. Before this Court, counsel for Mr Palasty merely offered security for costs of the appeal, although he did indicate that his client was willing to submit to such further orders as the Court might consider appropriate in the circumstances, if an extension of time were granted.

85 Even now, Mr Palasty does not seek a stay of the judgment below, nor has he made arrangements to pay any amount into Court, or otherwise provide security for payment of the judgment. Nor, in the only affidavit which he has filed in these proceedings (in this Court), did he indicate any willingness to make any payments of the kind variously proffered by his solicitor and counsel from time to time. In these circumstances, the Court cannot be satisfied that, apart from the risk of losing his judgment, Mr Tomko does not face real prejudice flowing from the further delay and legal costs which would be incurred if an extension of time were granted.

86 In my view the matters set out above are sufficient to conclude that an extension to time to appeal should not be granted in the present case. If, contrary to the view expressed at [32] above it is still possible for Mr Palasty to cross-appeal, I would refuse an extension of time to cross-appeal, for the same reasons.

Abuse of process

87 There are other matters which support that conclusion. Some are entitled to less weight than others. For example, some, but limited, weight might be given to the history of failure to comply with Court timetables in relation to the defence of Mr Tomko’s appeal. The Registrar described Mr Palasty’s conduct in that regard as having “thumbed his nose at the directions which have been given to respond to the prosecution of this appeal”. These included the failure to serve the notice of motion seeking an extension of time until it was too late for it to proceed on the return date, together with the failure to file and serve the supporting evidence in a timely manner.

88 Of greater concern, however, is the fact that Mr Palasty allowed Mr Tomko’s appeal to come on for hearing and be disposed of, without advising the bench as then constituted that there were outstanding proceedings relating to a proposed cross-appeal. The motion before the Registrar should have been disposed of on 20 August 2007, which, had it occurred, would have given ample opportunity for a review of that decision to be initiated prior to the hearing of the appeal on 17 September. That it was not disposed of in a timely fashion was entirely Mr Palasty’s fault. Even so, the motion was determined by the Registrar on 3 September, 14 days before the hearing of the appeal. Had the review properly been one carried out, in accordance with existing authority, pursuant to s 46(4), Mr Palasty had only 14 days to file an application to vary or discharge the order: Part 51, r 56. A decision to proceed would therefore have needed to be made prior to the hearing of the appeal on 17 September. Whether he had 14 days or 28 days, knowing that the hearing of the appeal was imminent, and indeed had been a reason for refusal of the application before the Registrar for leave to cross-appeal out of time, a decision should have been made prior to the hearing of the appeal as to what steps Mr Palasty intended to take. If he had sought advice in that regard, it would have been inexcusable for his counsel not to have told him that steps needed to be taken prior to the hearing of the appeal. If he received that advice, he did not act upon it. If he did not receive advice because he did not seek it, that would be inexcusable in the circumstances.

89 To allow Mr Tomko’s appeal to proceed without attempting to bring his cross-appeal on for hearing at the same time, or even advise the Court that such an application was outstanding, was tantamount to an abuse of process. It may be that this Court would have treated any application made at the hearing of the appeal as a strategy to disrupt the proceedings and avoid a timely resolution of Mr Tomko’s appeal. If that were the fear, and it would not have been an unreasonable fear, it would have been the result of his own delay, and a consequence he should have been willing to confront. In the result, a matter which should have been dealt with at the same time as the appeal is now sought to be dealt with separately and subsequently. Although the circumstances are different, they invite the application of the principles set out in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313 applied in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 602-604 in relation to an application for extension of time in which to appeal. In Anshun, there were two defendants to a claim by the plaintiff, Mr Soterales. They sought contribution from each other, but the Authority failed to claim an indemnity which, in the later proceedings, it claimed it was entitled to as against Anshun. The Court held that the claim for indemnity was so closely connected with the subject matter of the plaintiff’s claim against the Authority and Anshun that it was unreasonable not to rely upon it in those proceedings, with the result that it could not be relied upon in subsequent proceedings.

90 In the present case, if Mr Tomko’s appeal had succeeded, the judgment in the District Court would have been set aside and he would have been awarded a judgment in a larger amount. In that situation, it is doubtful that any cross-appeal could have been raised in relation to the District Court judgment, which had been superseded by the judgment of this Court. Mr Palasty would then have had to seek leave to reopen the judgment of this Court. He did not seek to justify his present position on the basis that he would have been entitled to take that step in any event. However, the result is that his present “cross-appeal” constitutes a challenge to the judgment of the District Court which can only be available (if at all), fortuitously, because Mr Tomko’s appeal failed. This is sufficient to illustrate, if the matter were in doubt, that his appeal is so closely connected with Mr Tomko’s appeal that it would be unreasonable to allow him to pursue his appeal in separate and subsequent proceedings. The fact that he had sought, unsuccessfully, to commence these proceedings prior to the determination of Mr Tomko’s appeal was probably seen as a basis for avoiding rejection of the application on these grounds. This risk was also no doubt the reason why he was unwilling to accept an invitation to make a separate application for an extension of time within which to appeal. Such a fresh application would have constituted an abuse of process and should, if reluctantly but informally made at the hearing, be rejected. Even if the motion to review the decision of the Registrar were technically still on foot, the attempt to revive the application for an extension of time within which to cross-appeal after the hearing of the appeal and without advising the Court or Mr Tomko constituted an abuse of process and, at the very least, a powerful discretionary reason for now refusing the application.

Conclusions

91 The application to review the decision of the Registrar made on 3 September 2007 should be dismissed. It could not be entertained following the determination of the appeal. At least it required, as a precondition to its consideration, reopening of the judgment given on 27 September 2007 in this Court. No such application was made.

92 If the application were to be treated as a fresh application for an extension of time within which to appeal, it should be refused, in accordance with the criteria identified in Jackamarra. It should also be refused because it constitutes an abuse of process.

93 The subpoenas now lack utility and, to the extent that they have not been answered, should be set aside.

94 Mr Palasty should pay Mr Tomko’s costs of the further proceedings in this Court of the motion to review the Registrar’s decision and any related applications disposed of by this judgment.

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LAST UPDATED: 14 December 2007