Allen v Lillimagi [No 2]

[2011] WASCA 241

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ALLEN -v- LILLIMAGI [No 2] [2011] WASCA 241

CORAM:   NEWNES JA

MURPHY JA

HEARD:   21 OCTOBER 2011

DELIVERED          :   21 OCTOBER 2011

PUBLISHED           :  1 NOVEMBER 2011

FILE NO/S:   CACV 87 of 2011

BETWEEN:   KERRY ALLEN

Appellant

AND

ROY LILLIMAGI
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :LILLIMAGI -v- ALLEN [2011] WASC 46

File No  :CIV 2438 of 2010

Catchwords:

Practice and procedure - Application to admit additional evidence - No grounds made out - Application for appeal to be heard with other appeals premature - Appellant's case out of time - Springing order made - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Appellant's interim application dismissed
Springing order made for filing of appellant's case

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms A M Gangemi

Solicitors:

Appellant:     In person

Respondent:     Durand Gangemi

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

Allen v Lillimagi [2011] WASCA 186

Allen v Perpetual Trustees [No 2] [2011] WASCA 240

1. JUDGMENT OF THE COURT:  On 21 October 2011, we heard an interim application by the appellant to admit further evidence on the appeal and for the appeal to be heard with certain other appeals, and a notice issued by the registrar for the appellant to show cause why the appeal should not be dismissed for failure to file and serve the appellant's case.

2. We dismissed the appellant's application and, in respect of the registrar's notice to show cause, made a springing order requiring the filing and service of the appellant's case by 31 October 2011.  We said we would provide reasons for our decision.  These are the reasons.

Background

1. The appellant, Brett Robert Allen and the respondent were the registered proprietors of two properties in Port Kennedy. The respondent applied for the sale of the properties in lieu of partition, under s 126 of the Property Law Act 1969 (WA). On 6 March 2011, Master Sanderson made such an order.

2. On 8 August 2011, the appellant filed an appeal notice and, as the appeal notice was out of time, sought an extension of time within which to commence the appeal.  At the same time the appellant sought the suspension of the master's order.  That suspension application was dismissed on 26 August 2011:  Allen v Lillimagi [2011] WASCA 186.

The matters for determination

1. The matters before the court for determination are:

   (a)an interim application, dated 30 August 2011 (filed on 7 September 2011), by the appellant for the following orders:

   (i)'further documents to be filed for consent';

   (ii)'letter';

   (iii)this appeal to be joined with CACV 86 of 2011 and an action in the general division, CIV 1433 of 2011;

   (b)a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to file and serve the appellant's case as required by the rules.

Disposition

1. Turning immediately to the last of those matters, pursuant to r 32 of the Court of Appeal Rules the appellant's case was due to be filed and served on or before 12 September 2011.  That requirement was specifically drawn to the appellant's attention in a letter from the court dated 15 August 2011.  It has not been complied with.  There is no explanation on affidavit from the appellant as to why the appellant's case has not been filed.  It is now more than five weeks out of time.  From what we were told by the appellant from the bar table it seems that the appellant was under some misapprehension as to what she was required to file.

2. Although the delay is substantial, we would not dismiss the appeal on this occasion but we would order that unless the appellant file and serve the appellant's case on or before 31 October 2011 the appeal is dismissed.

3. We turn then to the appellant's interim application.  That application is supported by an affidavit sworn on 30 August 2011.  We must say, with the greatest respect, that we cannot understand the affidavit at all.  The contents appear to have very little to do with any of the relief sought in the application.

4. In relation to the first part of the application, the affidavit does not explain what is meant in the application by 'further documents to be filed for consent' or 'letter'.  Regrettably, the appellant's explanation from the bar table did not do much to clarify the position.  It seems, however, that the appellant seeks to have admitted as additional evidence on the appeal a substantial amount of correspondence between the parties, both before and after the master's decision.  None of that correspondence was before us and its relevance to the appeal was not apparent.  That part of the application must be dismissed.

5. The second part of the appellant's application concerned the hearing of other appeals with this appeal.  It was not clear on what basis the appellant sought to have this appeal heard with CACV 86 of 2011 and the appeal said to have been commenced against the decision in CIV 1433 of 2011.  In her affidavit, the appellant says there is a 'causal connection' between the subject‑matters of this appeal, CACV 86 of 2011 and CIV 1433 of 2011, and that she will be seeking to have those matters heard together 'so that no one person is prejudiced'.  The connection between the matters is not explained, although it appears to be based upon the fact that all of the land involved was part of the same subdivision.  How that is said to be relevant to the appeal is not apparent.  Again, the appellant's explanation from the bar table was not of any assistance.  To add to the difficulty, neither the subject‑matter nor the parties to any appeal against the decision in CIV 1433 of 2011 are evident from the papers before us.

6. In respect of that part of the application it is sufficient to repeat what we said in our reasons for judgment on the appellant's application in CACV 86 of 2011:  Allen v Perpetual Trustees [No 2] [2011] WASCA 240, namely that any such application is premature. It must await the filing of the appellant's case and the respondent's answer in each appeal. In addition, notice of any such application must be given to all of the parties to the other appeals. We should observe, however, that on the material currently before us it is not evident that there is any basis upon which this appeal and CACV 86 of 2011 might properly be heard together as they involve different respondents and appear to involve different issues. It is impossible to make any comment in respect of CIV 1433 of 2011 as we have no information about that matter or any appeal relating to it.

7. The application must be dismissed.

Conclusion

1. It was for those reasons that we made the following orders:

   (a)the appellant's interim application filed on 7 September 2011 is dismissed;

   (b)unless on or before 31 October 2011 the appellant do file and serve the appellant's case, the appeal is dismissed and the appellant is to pay the respondent's costs of the appeal to be taxed; and

   (c)the costs of today be reserved.