ADIZES -v- JAKOV [2009] WASCA 9

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASCA 9
Court:	THE COURT OF APPEAL (WA)	Published:	13/01/2009
Case No:	CACV:24/2008	Heard:	3 APRIL 2008
Coram:	PULLIN JA	Delivered:	3/04/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for extension of time dismissed
Category:	B
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Parties:	ZAK ADIZES NIKOLA JAKOV ADRIAN BOWMAN GOOLD
Catchwords:	Appeal against a decision altering the award of an arbitrator Application for extension of time Turns on own facts
Legislation:	Nil
Case References:	Gallo v Dawson (1990) 64 ALJR 458 Girando v Girando (1997) 18 WAR 450 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ADIZES -v- JAKOV [2009] WASCA 9 CORAM : PULLIN JA HEARD : 3 APRIL 2008 DELIVERED : 3 APRIL 2008 PUBLISHED : 13 JANUARY 2009 FILE NO/S : CACV 24 of 2008 BETWEEN : ZAK ADIZES

Appellant

AND

NIKOLA JAKOV

First Respondent

ADRIAN BOWMAN GOOLD

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : TEMPLEMAN J

Citation : JAKOV -v- ADIZES & ANOR [2007] WASC 46

File No : ARB 6 of 2006

(Page 2)

Catchwords:

Appeal against a decision altering the award of an arbitrator - Application for extension of time - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Appellant : In person

First Respondent : Mr P J Marsh

Second Respondent : No appearance

Solicitors:

Appellant : In person

First Respondent : Stoddart & Co

Second Respondent : In person

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

Gallo v Dawson (1990) 64 ALJR 458
Girando v Girando (1997) 18 WAR 450
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

(Page 3)

1 PULLIN JA: This is an application for an extension of time in which to appeal against the judgment of Templeman J which was delivered on 27 February 2007. The notice of appeal was filed more than 12 months after that, on 10 March 2008, so we are dealing with a very substantial delay.

2 If an extension is to be granted I have to bear in mind there is a distinction between the discretion to extend time to institute an appeal and circumstances where the appeal has already been instituted and the extension is concerned only with procedural steps. See Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516.

3 The matters which have to be considered when deciding whether an extension of time within which to institute an appeal should be granted are that the respondent has a vested right to retain the judgment, the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the extent of any prejudice to the respondent. The need for a cogent explanation increases as the time increases.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ADIZES v Jakov

Details

AGLC: ADIZES v Jakov [2009] WASCA 9
Case: [2009] WASCA 9
Decision Date: 3 APRIL 2008

CaseChat Overview and Summary

The appellant, Adizes, appealed against a decision of the primary judge which dismissed an application to extend the time for filing an appeal against an arbitration award. The dispute involved the award of an arbitrator in an arbitration between Adizes and Jakov. The primary judge altered the award, which Adizes sought to appeal. Adizes applied for an extension of time to file the appeal, which was denied by the primary judge. The central legal issue was whether the primary judge erred in denying the application for an extension of time. This required the court to consider the circumstances of the case and whether they warranted an extension under the relevant legal principles.

The court examined the circumstances under which the application for an extension of time was made and whether they constituted "special circumstances" warranting an extension. The court found that Adizes had not demonstrated any special circumstances that would justify an extension of time. The appellant had been aware of the primary judge's decision and had taken no action until well after the time for appeal had expired. The court concluded that Adizes had not shown any exceptional circumstances that would warrant an extension of time. The application for an extension of time was therefore dismissed.

The court's reasoning was based on the principle that extensions of time are not granted lightly and require a demonstration of special circumstances. The appellant's delay in taking action and the absence of any exceptional circumstances meant that the application was properly dismissed. The court found no error in the primary judge's decision and upheld the dismissal of the application for an extension of time. Consequently, the appeal against the primary judge's decision was dismissed, and the orders made by the primary judge stood.

Orders

Orders of the court

Application for extension of time dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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