Bank of Western Australia Ltd v Faylette Pty Ltd
[2002] WASC 102
BANK OF WESTERN AUSTRALIA LTD -v- FAYLETTE PTY LTD & ORS [2002] WASC 102
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 102 | |
| Case No: | CIV:2315/2000 | 29 APRIL 2002 | |
| Coram: | MASTER BREDMEYER | 3/05/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension allowed | ||
| B | |||
| PDF Version |
| Parties: | BANK OF WESTERN AUSTRALIA LTD FAYLETTE PTY LTD STEPHEN LAWRENCE JAMES JENNIFER FAY JAMES |
Catchwords: | Appeal from Registrar's decision Application for extension of time within which to appeal Merits of the appeal Requirement that a body corporate may not defend an action otherwise than by a solicitor |
Legislation: | Rules of the Supreme Court, O 3 r 5(1), O 4 r 3(2), O 12 r 1(2), O 29A, O 60A r 5(1) |
Case References: | Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178 Gallo v Dawson (No 2) (1992) 109 ALR 319 Hawkwood Holdings Pty Ltd v Barrett-Leonard, unreported; SCt of WA (Sanderson M); Library No 980105; 9 March 1998 Money Tree Management Services Pty Ltd & Institute of Taxation Research v The Deputy Commissioner of Taxation (No 3) [2000] SASC 286 Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FAYLETTE PTY LTD
First Defendant
STEPHEN LAWRENCE JAMES
Second Defendant
JENNIFER FAY JAMES
Third Defendant
Catchwords:
Appeal from Registrar's decision - Application for extension of time within which to appeal - Merits of the appeal - Requirement that a body corporate may not defend an action otherwise than by a solicitor
Legislation:
Rules of the Supreme Court, O 3 r 5(1), O 4 r 3(2), O 12 r 1(2), O 29A, O 60A r 5(1)
(Page 2)
Result:
Application for extension allowed
Category: B
Representation:
Counsel:
Plaintiff : Mr J G Chai
First Defendant : In person (Mr S L James)
Second Defendant : In person
Third Defendant : In person (Mr S L James)
Solicitors:
Plaintiff : Blake Dawson Waldron
First Defendant : In person (Mr S L James)
Second Defendant : In person
Third Defendant : In person (Mr S L James)
Case(s) referred to in judgment(s):
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178
Gallo v Dawson (No 2) (1992) 109 ALR 319
Hawkwood Holdings Pty Ltd v Barrett-Leonard, unreported; SCt of WA (Sanderson M); Library No 980105; 9 March 1998
Money Tree Management Services Pty Ltd & Institute of Taxation Research v The Deputy Commissioner of Taxation (No 3) [2000] SASC 286
Case(s) also cited:
Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591
(Page 3)
1 MASTER BREDMEYER: This is an application by the second defendant to extend the three-day appeal period in respect of orders made by Registrar C Boyle on 15 March 2002. The relevant orders made were as follows:
"Upon the application of the second defendant filed 8 January 2002 for leave for the second defendant to represent the first defendant IT IS ORDERED THAT:
1. The application be dismissed.
2. The costs be the plaintiffs costs in the cause.
IT IS FURTHER ORDERED THAT:
3. The answers to the plaintiffs request for further and better particulars filed 15 March 2002 by the second defendant on behalf of the first defendant be removed from the Court file."
2 The orders were made under O 29A. The appeal period from an order of a Case Management Registrar is three days: O 60A r 5(1). Three days expired on 18 March 2002. If the appeal period had been 21 days, the period would have expired on 5 April 2002. Mr James filed a notice of motion by way of appeal and an application for leave to appeal on behalf of the first defendant on 4 April 2002.
3 Mr James swore an affidavit in support of this application on 11 April 2002. In it, he states that he is representing himself and the first defendant. He is the sole director of that company and he and his wife are the sole shareholders. The company has no assets. He says the company does not have the money to engage solicitors. The company had solicitors up to December 2001. He says he does not own a copy of the rules, but in the last three or four months he has spent considerable time in the Supreme Court Library studying the rules and thought, from his reading, that the appeal period was 21 days. He flagged a possible appeal from Registrar Boyle's orders in a letter to the plaintiff's solicitors of 18 March 2002.
4 The Court does have power to extend the three-day appeal period stipulated by O 60A r 5(1): see Hawkwood Holdings Pty Ltd v Barrett-Leonard, unreported; SCt of WA (Sanderson M); Library No 980105; 9 March 1998. The power to extend is given by O 3 r 5(1). Given that Mr James is a layman, I can understand his ignorance of the
(Page 4)
- three-day appeal period and his belief that the appeal period was 21 days. That was a mistaken belief, but an understandable one. In those circumstances, and given that he flagged his desire to appeal early on in a letter to the plaintiff's solicitors, I consider his explanation for the delay is reasonable and that the period of delay is also reasonable.
5 The plaintiff opposes the extension sought by saying that the appeal is hopeless and that an extension of time should be refused if the appeal has no prospects of success: Gallo v Dawson (No 2) (1992) 109 ALR 319 at 320. Indeed, if the appeal is hopeless, that factor should prevail over all others when deciding whether or not to grant an extension of time within which to appeal: Money Tree Management Services Pty Ltd & Institute of Taxation Research v The Deputy Commissioner of Taxation (No 3) [2000] SASC 286. A party who has a judgment in his favour should not be required to bear the cost of opposing an argument which is bound to fail or be delayed in enforcing its judgment by an appeal which is hopeless: Money Tree Managementibid.
6 The submission that the appeal is hopeless is based on Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178 per Hasluck J, a decision which is binding on me.
7 Mr James wants an extension of time to appeal two orders made by the Registrar on 15 March 2002. The first is the second defendant's application of 8 January 2002 for leave to represent the first defendant, Faylette Pty Ltd. That application was dismissed. I think the appeal point raised here is arguable. Hasluck J at [47] and following decided that a company cannot take a step in defending an action except through a solicitor. However, he also said that the Court can, in its inherent jurisdiction, allow a person in exceptional circumstances to appear as advocate for a company. I think it arguable that that latter decision - whether an individual might be allowed to appear as advocate for a company - should be left to the trial and to the trial Judge. I think it arguable that a Case Management Registrar can prevent an individual, like Mr James, taking a step in the defence of the action, such as filing a document on behalf of the company. However, the decision to allow or not to allow Mr James to appear at the trial and address arguments on behalf of the company should, I think, be left to the trial Judge. It may be that the Registrar's decision should be interpreted down as prohibiting the former, but not tying the hands of the trial Judge. As it stands at the moment, it would appear to cover both matters.
(Page 5)
8 The second order, the subject of the proposed appeal, is order 3 - that the answers to the plaintiff's request for further and better particulars which were filed by the second defendant on behalf of the first defendant on 15 March 2002 be removed from the court file. The background to this order is as follows:
1. On 25 September 2001, there was a request by the plaintiff to the first and second defendants to provide further and better particulars of pars 14 and 15 of the defence and counterclaim.
2. On 14 December 2001, the first and second defendants were ordered to file and serve answers to that request by 8 February 2002. I should add that also on 14 December, Lewis Blyth & Hooper got off the record as solicitors for the first defendant.
3. On 8 February 2002, Registrar Boyle extended the time for the first defendant to comply with the request for particulars to 15 March 2002.
4. Those particulars were filed on 15 March 2002.
The particulars are dated 14 March, but filed on 15 March. They cover 28 pages. They are signed "Stephen James, Director of First Defendant".
9 I do not consider that the filing of those particulars clearly falls foul of O 4 r 3(2), or, more particularly, O 12 r 1(2), which applies when a company is defending an action, or of the Four Seasons decision. Those particulars are filed at the request of the plaintiff, to better inform the plaintiff of the first defendant's defence and to pin the first defendant down at trial to leading evidence on those particulars only in relation to those paragraphs of the defence. The first defendant is taking a step in the defence of the action at the request of the plaintiff. Contrast them with a positive step in the defendant's defence such as a request by the first defendant for further and better particulars of the plaintiff's statement of claim, or an application by the first defendant for an order for those particulars.
10 I think the appeal is arguable on these two points. It is not hopeless. I think it just to extend the time to 4 April 2002. Given the importance of the legal points raised, involving as it does the interpretation and practical outworking of the law as set out in the Four Seasons case, I will direct that the appeal be heard by a Judge.
11 I will hear the parties on the orders and on costs.
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