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In the matter between:

and

JUDGMENT
(application for leave to appeal)

This is an application for leave to appeal with a further application seeking condonation for its lateness. Both are opposed.

A first issue however which the respondent has raised is whether the second applicant is properly before court. It has been agreed before me that the review application was indeed instituted and prosecuted by both applicants (an early objection in this regard evidently not being pursued). The  respondent   however   has   challenged   the   first   applicant's standing to proceed in the two applications now before me on behalf of the second applicant.

There are, as counsel for the respondent has pointed out in written submissions, a number of facts relating to the explanation tendered which are not satisfactory:

[a] The affidavit in the application does not suggest that the first applicant was not at all material times aware of the prescribed time limits for filing an application for leave to appeal or not. This is clearly material as regards whether the  explanation  is adequate or whether the failure is to be ascribed to supiness or worse.

[c]    There is no mention of the precise date or period of hospitalisation of the attorney.

[d]    It is not explained why it took 11 days from the date on which the first applicant allegedly instructed her attorney to proceed with the application for leave to appeal on the date on which this application was filed. That is a serious and inexplicable omission.

As against these factors, however, is the consideration that the degree of default, while material, is not gross, and that the default relates at least in some degree to the indisposition of the first applicant's attorney. In short, while the explanation overall in my assessment remains unsatisfactory this is not a case in which it would be appropriate to dismiss the application on that basis, and without regard to the prospects of success. The question is accordingly as to whether that explanation taken with the prospects of success is such as cumulatively to make it appropriate to grant or refuse leave. For that purpose it is necessary now to consider the application for leave to appeal itself.

In respect of none of the points advanced in the application, and   in  written  or oral  argument in  support of it, was  it contended that a wrong legal test or principle had been applied. Nor has it been suggested that any novel issue of law arises in this matter. Nor, thirdly, is there any wider consideration of public interest which has been identified. The argument accordingly narrows to the contention on behalf of the applicants that there is a reasonable prospect that another court, applying the same (and unchallenged) legal tests, may find for the applicants on the affidavits filed.

This contention was advanced in essentially three respects, straddling   the   itemised   review  grounds,   in  this  order  of prominence:

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	the costs order made.

I do not believe that it is feasible that another court reading the same affidavits would sustain this attack. Firstly the contention is on analysis appellate and not founded on review, 20 for the reasons analysed at page 9 of the judgment (a passage not attacked in this application). Secondly there is no factual refutation of the evidence that the two appeal arbitrators met more than twice, that they went through the material parts of the evidence and that the second respondent was ultimately persuaded by the correctness of the third respondent's view after a consideration of what he clearly considered to be the pertinent parts of the evidence. Far from supporting the suggested inferences of bad faith, slavish abdication of judgment, and a failure to consider the evidence in my view these unchallenged facts support the contrary conclusion.

	
Counsel for the applicants conceded this morning that the explanation by the arbitrators was indeed not factually traversed. The response however, as I have indicated, was that the respondents were required to specify exactly which 5 portions of evidence had been determinative for the conclusions which they reached in their joint final determination. I do not believe that another court would reasonably hold that it is required of arbitrators in answering charges of this kind to provide a Cook's Tour of the evidence, 10 failing which an inference would be drawn that they are dishonest or partial in the job that they have done.

The other grounds advanced on the merits substantially repeat the contentions considered in the judgment. I have again considered these, this time however from the specific viewpoint as to whether there is a reasonable prospect that another court may view the papers differently. I do not believe that that prospect reasonably exists. The reliance in particularly on the inquiry as to what might happen if the arbitrators did not agree, and the reliance on the good wishes exchanged at the end of the arbitration, in my view raise no reasonable prospect of another court coming to a different conclusion.

In all the circumstances - the scant prospects of success together with the defective explanation for the default in the respects I have identified - are such as in my assessment to make it appropriate to refuse in my discretion the application for condonation.

The respondent seeks a punitive costs order in relation to the two applications adjudicated today. The principles applicable to such costs order have been outlined in the judgment and I shall not repeat them. I see no proper basis for the request 5 made in relation to the condonation application or the application for leave to appeal, applying those trite principles.

GAUNTLETT, AJ