Gail Stevenson And Another v The Chartered Bank

-----------------

-----------------

-----------------

JUDGMENT

-----------------

Huggins, J.A.:

1. The first Appellant moves for an extension of time for setting down an appeal and also seeks an order that an order of a registrar refusing an extension of time "be set aside, reversed and rescinded". As we shall see, that formulation of the remedies sought perpetuates a confusion which has been apparent throughout the proceedings which have followed the registrar's order. The action relates to a joint account operated by the first Appellant and her husband with the respondent bank. Briggs, C.J. gave judgment for the bank and the effect of the judgment was (to put it in neutral terms) that an inheritance of $300,000 which the first Appellant had received was no longer available for her use. The Appellants lodged notice of appeal. However, they failed to take the prescribed steps for setting down the appeal within the period fixed by 0.59 r.5, namely "seven days after service of the notice of appeal or within such further time as may be allowed by the Registrar". The seven days having expired application was eventually made to Mr. Registrar Barnett, who decided that on the authorities it was not a proper case for an extension of time. Application was then made under 0.3 r.5 to the judge in chambers, but Cons, J. took the view that he had no jurisdiction in a matter with which this court was seised and which "by its nature belongs to the jurisdiction of [this] court". With that view I entirely agree. The learned judge also suggested that the proper course was to apply to a single judge of the Court of Appeal in chambers. When the present application was put before me I indicated that I thought it was a matter which, whether or not a single judge had jurisdiction, ought to be brought before a court of not less than two judges and would be so brought in England: even though in form an original application it has some of the attributes of an interlocutory appeal and, if it is dismissed, that will have a far reaching effect for the Appellants. Moreover, it seemed to me convenient that alternative proceedings filed by the Appellants with a view to obtaining the same result should be heard at the same time and they required a court of not less than two judges.

2. The first question is whether the court has jurisdiction under 0.3 r.5 to make the order asked. Lest we should hold that it does not, the first Appellant has filed notices of motion on appeal from the order of Mr. Registrar Barnett. It has been said that there is some doubt whether the application to the registrar was made under 0.59 r.5, under 0.3 r.5 or under both rules, although the summons itself indicated quite clearly that it was under 0.3 r.5. For my part I have no doubt that the proper course was to apply under 0.59 r.5 and I assume (as did Cons, J.) that the application was dealt with under that rule. Until the registrar had refused to allow a longer period than seven days any application under 0.3 r.5 was premature. Moreover, the registrar would have had no jurisdiction under 0.3 r.5: his jurisdiction is conferred by 0.32 r.11 and is to exercise the jurisdiction of "a judge in chambers". That means, as Cons, J. rightly held, a judge of the High Court exercising a jurisdiction which such judge may exercise in chambers. However, the discretion under 0.59 r.5 was given to the registrar alone and in my view no appeal lies from an exercise of that discretion. A note in the Supreme Court Practice 1976 at p.857 (para. 59/5/1) reads:

"If [the proper officer] refuses to allow further time, semble, an application may (if the facts warrant it) be made for that purpose to the Court of appeal under 0.3, r.5 (see 0.59, r.15 (n.))."

With respect I think that correctly states the practice which ought to be followed.

3. Ought we to grant an extension of time? Mr. Horton submits on the authority of Medcalf v Medcalf 1958 1 W.L.R. 338 that we should do so unless there is some special reason for refusing. I think that case is of no assistance to us here. The issue before the Court of Appeal was whether an extension of time for setting down an appeal against the refusal of a decree nisi of divorce could properly be granted by that court under 0.58 r.15 (the predecessor of the present 0.59 r.16) and it was held that it could not; the proper course was to apply under r.5 (the equivalent of our 0.59 r.5) to "the proper officer". Hodson, L.J. expressly stated that "the court ought not to issue a direction to the proper officer on how he is to act" and I think it would be wrong to read the rest of his short judgment as laying down the principle by which the proper officer should be guided. The principle applicable here is that set out in Ratnam v Cumarasamy 1965 1 W.L.R. 8 and Revici v Prentice Hall Inc. 1969 1 W.L.R. 157. In the former case the Judicial Committee of the Privy Council said that in order to justify an extension of time there must be some material upon which the court can exercise its discretion, otherwise the purpose of the rules would be defeated. In Revici v Prentice Hall Inc. the same principle was stated in a different way, namely that, if there is non-compliance with a time limit for more than a minimal period, that is something which has to be explained away: no excuse - no indulgence.

4. What the first Appellant says is that her inheritance of $300,000 was in the joint account which was the subject matter of the action and she had to make financial arrangements to meet the costs of the action and of the appeal when the Chief Justice held that that account was no longer available to her. She was given to understand that there was no great haste. Her solicitor did not press her because he believed (wrongly as it transpires) that the solicitor for the Respondent had indicated his willingness to agree...