Singh v Starkey[1999] QCA 279

THE PRESIDENT:  Justice Davies will deliver his reasons first.

DAVIES JA:  This purports to be an application to set aside the decision of the Senior Deputy Registrar of Appeals dated 6 July 1999 that Appeal No 3746 of 1998 be struck out.

There was however no relevant decision of the Senior Deputy Registrar on that date.  On that date she performed the administrative act of entering a self-executing judgment made by this Court on 15 June this year.

That order was that the time for institution of the appeal be extended as necessary to regularise the service effected on 30 April 1998; that unless the appellants by 4 p.m. on the date three weeks hence file a record of proceedings in the Court for the purposes of appeal, in accordance with the requirements of the Registrar, the appeal be taken to be struck out without further order required from the Court; and that the appellants pay the other parties' costs of and incidental to the application to be taxed in any event.

However the application may and should, as the applicants contended in their written outline, be treated as an application to extend the time limited by the self-executing order.  That the Court has power to grant such an application even after such an order has been effected is clear:  see rule 7(1) of the UCPR and FAI General Insurance Company Limited v. Southern Cross Exploration NL (1988) 165

CLR 268.

The question then is whether this Court should in the circumstances exercise its discretion to grant an extension of time within which the applicant may prepare and file the appeal record books.

There are at least two factors which tend against the granting of that application.  In the first place, there has been substantial and continuing delay by the applicant in proceeding with this appeal which is plainly one which should be proceeded with promptly and it is delay for which there has been no, in my view, satisfactory explanation.

In the first place the notice of appeal was served out of time as the order of 15 June indicates; and, as also appears from the short reasons for judgment which were given upon the granting of that application on 15 June, this Court gave fair warning on that day that further delay would not be tolerated.

The affidavit of Mr Leppa in my view gives an incomplete and misleading account of what took place since that date.  I give only a few examples of this.  Reference is made to an inability to obtain for some time a copy of the order of 15 June.  That order was short and clear, the delay could not possibly have been relevant.

Reference is made to an inability to obtain for some time a complete copy of the transcript of proceedings in Writ No 11313 of 1997, but no attempt was made in the affidavit to show how those proceedings were relevant and the judgment in those proceedings and the judgment in these proceedings does not indicate that they were.

Mr Bain who appeared for the applicants before us said that they were relevant to the proceedings because they showed the intensity of the dispute between the parties and the consequent likelihood of apprehension of bias because, as is common ground, the first respondent was the accountant for the second respondents.

But those proceedings were between different parties and the material which was sought to be included in the record was not material which had been before the primary Judge in these proceedings.  I cannot therefore see how it is relevant to the question on appeal.

Then it is said that the applicant was unable to obtain copies of some documents in these proceedings, but no explanation is given for why the applicants did not have those documents in their possession as they ought to have had.

No reason was given for the delay until, and then the sudden flurry of activity on, the last day, 6 July, or perhaps more accurately, the closing hours of the previous day.  There is therefore in my view no satisfactory explanation for the delay in complying with the order of 15 June.

The other factor which in my view tends against the granting of this application is the effect which the delay has had on the administrator's standing and the performance of his work.  It is true, as Mr Bain has pointed out, that is something which existed at the outset, but the longer it lasts, the worse it gets, in my view.  The effects have been set out in the outline of the respondents and I shall not set them out here.

Mr Bain contends, nevertheless, that the application should be granted because, he submits, the learned primary Judge was wrong in stating the principle which was relevant here.  He construed a statement made by His Honour as having the effect that the principle of reasonable apprehension of bias did not apply to the case in hand.  However I would not construe His Honour's statement in that way.

His Honour's statement was:

"The notion of reasonable apprehension of bias has little room to operate in regard to this."

However His Honour's statement must be taken in the context in which it was made, which was this.  His Honour said in the immediately two preceding sentences:

"The only function conferred on him" -

that is, the administrator -

"without qualification is the power to administer the finances of the association.  That is essentially an accounting function."

In other words, what His Honour was saying was not that the principle did not apply, but that it had little room to operate in the circumstances.

For those reasons, I do not think that His Honour misstated or misapplied the correct principle, and in my view the prospects of success on this appeal are, as this Court adverted to, although not in express terms on the previous occasion, at best slim.

For all of those reasons, but particularly because of the unexplained delay, I would refuse the application.

THE PRESIDENT:  I agree. 

CULLINANE J:  I agree that the application should be refused also.

THE PRESIDENT:  The order is the application is refused with costs.