ABDEL-MESSIH v Qaqish

[2022] WASCA 30

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ABDEL-MESSIH -v- QAQISH [2022] WASCA 30

CORAM:   MITCHELL JA

BEECH JA

VAUGHAN JA

HEARD:   8 MARCH 2022

DELIVERED          :   8 MARCH 2022

PUBLISHED           :   8 MARCH 2022

FILE NO/S:   CACV 32 of 2021

BETWEEN:   RAOUF ABDEL-MESSIH

Appellant

AND

MUIN QAQISH

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MASTER SANDERSON

File Number            :   CIV 1973 of 2020

Catchwords:

Appeals - Where order dismissing plaintiff's application for summary judgment - Whether appeal competent - Whether right of appeal excluded by s 60(1)(b) of the Supreme Court Act 1935 (WA)

Legislation:

Supreme Court Act 1935 (WA), s 60(1)(b)

Result:

Application for extension of time dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in decision(s):

Builders Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616

Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1

Southern Region Pty Ltd v Minister for Police [2003] VSCA 105

JUDGMENT OF THE COURT:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. The appellant commenced proceedings in 2020 against the respondent, claiming moneys said to be owed pursuant to a guarantee.  On 12 December 2020, the appellant filed an amended statement of claim.  On 18 December 2020, the appellant filed an application for summary judgment.

2. The appellant's application for summary judgment was heard on 19 January 2021.  The master reserved his decision. 

3. On 22 February 2021, the master dismissed the application, finding that the circumstances of the case were sufficiently complex for it to be inappropriate to enter summary judgment.  The master ordered that the appellant's application for summary judgment be dismissed and that the costs of the application be in the cause.[1]

   [1] BAB 1.

4. The appellant now seeks an extension of time to appeal against the master's dismissal of his application for summary judgment.  In our view, the application for an extension must be refused, and the appeal must be dismissed, because the appeal is incompetent.

5. Appeals are creatures of statute.[2]  A right of appeal exists to the extent, and only to the extent, that a statutory provision confers a right of appeal.[3] 

   [2] Builders Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616, 619; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [14].

   [3] Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225.

6. Sections 58 and 59 of the Supreme Court Act 1935 (WA) confer rights of appeal in various specified respects. However, the specific provisions in s 60(1) limit the preceding general provisions. Section 60(1)(b) provides that no appeal shall lie to the Court of Appeal from an order of a judge or master giving unconditional leave to defend an action.

7. In determining an application for summary judgment, the court may give the defendant against whom the application is made leave to defend the action either unconditionally or on such terms as to giving security or otherwise as it thinks fit.[4]  An order dismissing a plaintiff's application for summary judgment without imposing any conditions is, in substance, an order giving the defendant unconditional leave to defend.[5]

   [4] Rules of the Supreme Court 1971 (WA), O 14 r 4(3).

   [5] Southern Region Pty Ltd v Minister for Police [2003] VSCA 105 [17] - [18].

8. That is the effect of what occurred in this case. The master's order dismissing the appellant's application for summary judgment, without imposing any conditions, is, in substance and effect, an order granting unconditional leave to the respondent to defend the action. Consequently, any right of appeal is excluded by s 60(1)(b).

9. For these reasons, we make the following orders:

   1.Application for an extension of time to appeal is refused.

   2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BM

Associate to the Honourable Justice Beech

8 MARCH 2022