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 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'.
The affidavit in support of the application is entirely inadequate. It simply contains what appears to be the substance of the appellant's grounds of appeal. They consist essentially of attacks on the primary judge's finding of fact that the appellant was the person who sold the dog, including complaints that his Honour relied on the purchasers' affidavit evidence in which the purchasers identified the appellant as the seller from TV footage of her; that he heard (unspecified) hearsay evidence; and that the mobile telephone number the purchasers called to arrange to buy the dog was not her number.
The affidavit does not refer to any attempts by the appellant to obtain legal advice over the previous six months or to her prospects of obtaining legal advice. In that context, it is notable that at the hearing on 15 June 2015, the appellant said she would probably have to get some advice on how to prepare the appellant's case and was told that if she was in any doubt as to how to go about it, she must get that advice.
The appellant also does not identify in her affidavit the documents that she says she is waiting on from the court or what endeavours she has made to obtain them. It is also not apparent why she would require any documents from the court to enable her to prepare the appellant's case. On the hearing before us the appellant said that on 15 June 2015 (the date of the first order to file the appellant's case) she had filled out forms at the court's Central Office requesting copies of all documents on the court file below and was still waiting for those documents.
A search of the court files has failed to locate a request for those documents. It has, however, unearthed a request by the appellant, on 4 August 2015 (the date of the springing order), for a waiver of fees for copies of the transcript of the proceedings before the primary judge. The appellant was notified by letter dated 7 August 2015 that the fee waiver had been granted. There is also a note on the court file which indicates that the appellant was notified on 20 August 2015 that the transcript was ready for collection. The appellant told us she had obtained the transcripts 'around about 28 August'.
The failure by a party to comply with a springing order is an egregious breach. A springing order is normally made, as in this case, only after a party has already failed to comply with the rules and/or an order of the court. It is intended to be the last opportunity the party gets to put their case in order. While the court has the power to extend the time for compliance with a springing order even after the order has taken effect, such an extension will be granted only in an exceptional case where the party has established that there are compelling reasons for doing so. See, for instance, MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] ‑ [57] and the cases there cited; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53].
The appeal has now been on foot for a little over eight months, during which time no progress at all has been made. The appellant's case is seven months overdue and appears to be no closer now to filing than it was at the outset. The appellant seems to have made little or no effort to comply with the orders of the court requiring her to file the appellant's case. Those orders seem to have been ignored on the assumption that another extension of time would be there for the asking. That is exemplified by her conduct in waiting until the last day for compliance with the springing order before making an application for an extension of time. We should add that the complaints the appellant makes in her affidavit about the decision of the primary judge also give little reason to believe the appeal has any real foundation.
In our view, making all due allowances for the difficulties involved in conducting an appeal without legal assistance, the appellant has had all the indulgences that can reasonably be afforded to her. On the material before us, there is no proper basis upon which this court could grant a further extension of time. The application is dismissed.