Alvaro v Boucher

[2009] WASCA 132

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ALVARO -v- BOUCHER [2009] WASCA 132

CORAM:   BUSS JA

NEWNES JA

HEARD:   28 JULY 2009

DELIVERED          :   28 JULY 2009

FILE NO/S:   CACV 44 of 2009

BETWEEN:   ROCCO ALVARO

Appellant

AND

KEITH BOUCHER
First Respondent

LOUISE BOUCHER
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 2545 of 2008

Catchwords:

Appeal - Failure by appellant to comply with rules of court and order of Registrar - Springing order made

Legislation:

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

Result:

Springing order made

Category:    B

Representation:

Counsel:

Appellant:     Mr R J Bowker

First Respondent           :     Mr T C F Ho

Second Respondent      :     Mr T C F Ho

Solicitors:

Appellant:     Tottle Partners

First Respondent           :     Talbot Olivier

Second Respondent      :     Talbot Olivier

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

Nil

1. BUSS JA: Pursuant to an order made on 17 June 2009, the Court of Appeal Registrar has listed this appeal before the court today for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA). By that provision, relevantly, the court has jurisdiction to dismiss an appeal if the appellant has not obeyed the Rules or any order made under them.

2. The appeal was commenced on 17 April 2009 and the appellant's case was required to be filed by 22 May 2009.  It was not filed by the due date. 

3. By a Registrar's notice to attend dated 8 June 2009, the Court of Appeal Registrar listed the appeal for directions on 17 June 2009 as a result of the appellant having failed to file and serve the appellant's case by the due date.

4. On 17 June 2009, the Court of Appeal Registrar ordered that the time for the appellant to file and serve the appellant's case be extended to 17 July 2009.  The appellant's case was not filed by this extended date.  It has still not been filed. 

5. When the appeal notice was filed the appellant was represented by Williams & Hughes, barristers and solicitors.  On 4 June 2009, the appellant filed a notice of self‑representation.  On 15 July 2009, Tottle Partners Lawyers filed a lawyer's notice of acting on behalf of the appellant. 

6. By an application dated 17 July 2009, the appellant applied for orders, relevantly, that he have until 31 July 2009 to file and serve the appellant's case.  The application is supported by an affidavit of Yin Chieh Fang sworn 17 July 2009.  Ms Fang is a solicitor employed by Tottle Partners.  It is apparent from her affidavit that on 15 July 2009 the appellant retained Tottle Partners to act for him in the appeal.  Ms Fang deposes that after reviewing various documents received from the appellant, she realised that some of the documents relevant to the appeal were missing.  The absence of these documents and the late retainer of Tottle Partners meant that Ms Fang was unable to prepare, file and serve the appellant's case by the extended deadline of 17 July 2009.

7. The respondents oppose the further extension of time from 17 July 2009 to 31 July 2009.  They have filed and served an outline of submissions.  The respondents assert that the appellant has not offered any explanation for his failure to file and serve the appellant's case, other than his awaiting a copy of the written reasons of the primary decision‑maker,

Master Sanderson.  Also, they say that the appellant has not provided details of any potential grounds of appeal.  Further, the respondents say that although they have received from the appellant the amount payable under the summary judgment orders made by the learned Master in respect of which the appeal is brought, it is in the interests of justice for the respondents to have finality in the judicial determination of whether they are entitled to make use of these funds.  In addition, the respondents object to the admissibility of par 4 of Ms Fang's affidavit.

1. There is, in general, merit in the respondents' contentions, but it does appear the written reasons of the learned Master were not made available until 18 June 2009.  There is some explanation, but no reasonable excuse, for the appellant's ongoing failure to file and serve the appellant's case.  I would not, however, in the exercise of my discretion and for four reasons, dismiss the appeal today.  First, the appellant has recently re‑engaged solicitors and their re‑engagement appears to have been made in good faith.  Secondly, the duration of the further extension sought by the appellant is not substantial.  Thirdly, the appellant has paid the amount required pursuant to the summary judgment orders made by the learned Master.  Fourthly, the respondents would not be relevantly prejudiced by the grant of a short, further extension.  Although I would not dismiss the appeal today, it is appropriate, in the circumstances, that a springing order be made.  Accordingly, I would order that the appeal be dismissed and the appellant pay the respondents' costs of the appeal to be taxed, unless the appellant's case is filed and served by 4.00 pm on 5 August 2009.       

2. NEWNES JA:  I agree.