Armstrong v Commissioner for Consumer Protection - [2015] WASCA 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ARMSTRONG -v- COMMISSIONER FOR CONSUMER PROTECTION [2015] WASCA 216

CORAM: NEWNES JA
MURPHY JA

HEARD: 14 OCTOBER 2015

DELIVERED : 4 NOVEMBER 2015

FILE NO/S: CACV 29 of 2015

BETWEEN: FAY MARIE ARMSTRONG
Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [No 4] [2015] WASC 8
File No  :CIV 1611 of 2012

Catchwords:

Practice and procedure - Application for extension of time to comply with springing order - Relevant principles - Application dismissed

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms H L Kerr

Solicitors:

Appellant: In person
Respondent: Commissioner for Consumer Protection

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

MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
TP Engineering Pty Ltd v JM [2015] WASCA 181

JUDGMENT OF THE COURT: This is an application by the appellant for an extension of time within which to file and serve the appellant's case. The appeal currently stands dismissed as a result of the appellant's failure to comply with a springing order made on 4 August 2015. That order required the appellant's case to be filed and served by 28 August 2015.
The present application must be viewed in light of the relevant history of the appeal.
On 22 August 2012, Beech J ordered that the appellant be restrained, among other things, from:
3.3selling or offer for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition;
…
3.6without limiting any of the above, entering into an agreement for the supply of a dog without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition; and
3.7without limiting any of the above, accepting payment or other consideration for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition.
On 19 August 2013, the respondent applied for an order that the appellant be committed for contempt for breaching those orders. The substance of the contempt was the alleged sale by the appellant of a dog without having obtained or provided to the purchaser a written report of a qualified veterinarian as to the animal's condition.
Following a contested hearing, on 16 January 2015, the primary judge found that the appellant was in contempt in the respects alleged.
The appellant, acting in person, filed a notice of appeal on 6 February 2015. On 10 February 2015, a letter was sent to her by the Court of Appeal registrar setting out what the appellant's case must contain and informing her that the appellant's case was required to be filed on or before 13 March 2015. On 16 April 2015, and again on 7 May 2015, the registrar…

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.

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Details

Case: [2015] WASCA 216
Decision Date: 4 NOVEMBER 2015

CaseChat Overview and Summary

Armstrong filed an application for an extension of time to file their case in the Court of Appeal. The application arose from a dismissed appeal due to Armstrong's failure to comply with a springing order dated 4 August 2015, which mandated the filing and service of their case by 28 August 2015. The appellant's appeal was dismissed due to this non-compliance. The court had to determine whether the application for an extension of time should be granted.

The court considered the history of the appeal and the reasons provided by Armstrong for the extension. Armstrong had previously been restrained from selling animals without a qualified veterinarian's report. Following a finding of contempt for breaching these orders, Armstrong filed an appeal, which was dismissed for failure to comply with procedural orders. Despite multiple reminders and warnings from the registrar, Armstrong did not meet the deadlines. The court examined whether the circumstances provided by Armstrong warranted an extension of time, considering their claim of needing legal assistance and awaiting documents from the Supreme Court.

The court dismissed the application for an extension of time. It held that the appellant's reasons did not justify the extension. The court noted that the appellant had been aware of the need to comply with the orders for some time and had failed to take timely action to address the issues. The court concluded that the application did not meet the necessary threshold for an extension of time under the relevant principles.

The court dismissed the application for an extension of time and ordered that the appeal remain dismissed. Armstrong was also ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an application by the appellant for an extension of time within which to file and serve the appellant's case. The appeal currently stands dismissed as a result of the appellant's failure to comply with a springing order made on 4 August 2015. That order required the appellant's case to be filed and served by 28 August 2015. The present application must be viewed in light of the relevant history of the appeal. On 22 August 2012, Beech J ordered that the appellant be restrained, among other things, from:3.3selling or offer for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition;…3.6without limiting any of the above, entering into an agreement for the supply of a dog without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition; and3.7without limiting any of the above, accepting payment or other consideration for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition. On 19 August 2013, the respondent applied for an order that the appellant be committed for contempt for breaching those orders. The substance of the contempt was the alleged sale by the appellant of a dog without having obtained or provided to the purchaser a written report of a qualified veterinarian as to the animal's condition. Following a contested hearing, on 16 January 2015, the primary judge found that the appellant was in contempt in the respects alleged. The appellant, acting in person, filed a notice of appeal on 6 February 2015. On 10 February 2015, a letter was sent to her by the Court of Appeal registrar setting out what the appellant's case must contain and informing her that the appellant's case was required to be filed on or before 13 March 2015. On 16 April 2015, and again on 7 May 2015, the registrar wrote to the appellant pointing out that the appellant's case was overdue. None of that prompted the appellant to file the appellant's case and, on 2 June 2015, the registrar issued a notice to attend to show cause why the appeal should not be dismissed for failure to file the appellant's case. That came on for hearing on 15 June 2015, at which time the appellant was ordered to file and serve the appellant's case on or before 6 July 2015. On that occasion, the appellant was told that if she did not comply with the order the appeal may be dismissed. The appellant did not comply with the order. On 21 July 2015, the Court of Appeal registrar issued a further notice to attend to show cause why the appeal should not be dismissed for failure to file the appellant's case. That came on for hearing on 4 August 2015. At that hearing an order was made that unless the appellant filed and served the appellant's case on or before 28 August 2015, the appeal be dismissed and the appellant pay the respondent's costs of the appeal. The appellant did not comply with the order and accordingly the appeal was dismissed. However, on 28 August 2015 the appellant filed an interim application seeking an extension of time to file the appellant's case, 'to get proper legal help' and on the ground that she was 'still waiting for copies of docs (sic) from Supreme Court'.

Ratio Decidendi

Legal Principle Established

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