Cornell v National Australia Bank Limited [No 2]

[2010] WASCA 23

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CORNELL -v- NATIONAL AUSTRALIA BANK LIMITED [No 2] [2010] WASCA 23

CORAM:   BUSS JA

NEWNES JA

HEARD:   5 FEBRUARY 2010

DELIVERED          :   5 FEBRUARY 2010

PUBLISHED           :  12 FEBRUARY 2010

FILE NO/S:   CACV 110 of 2009

BETWEEN:   WILLIAM LANCE CORNELL

First Appellant

ROSA MARIA CORNELL
Second Appellant

AND

NATIONAL AUSTRALIA BANK LIMITED
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :NATIONAL AUSTRALIA BANK LIMITED -v- CORNELL [2009] WASC 255

File No  :CIV 1414 of 2009

Catchwords:

Appeal - Failure by appellants to comply with rules of court and order of Registrar - Directions given - Turns on own facts

Legislation:

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

Result:

Directions given

Category:    B

Representation:

Counsel:

First Appellant               :     Mr A P Skerritt

Second Appellant          :     Mr A P Skerritt

Respondent:     Mr G M Slattery

Solicitors:

First Appellant               :     Corser & Corser

Second Appellant          :     Corser & Corser

Respondent:     Minter Ellison

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

Nil

1. BUSS JA: By notice to attend dated 4 February 2010 the Court of Appeal registrar has listed this appeal before the Court today for the appellants 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 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 is against an order of Master Sanderson made on 19 August 2009 that the appellants give vacant possession of two properties in Boddington to the respondent.  A stay was granted by Newnes JA on 16 December 2009 in relation to one of the properties, no stay having been sought in relation to the other, on condition that the appellants pursue the appeal with appropriate diligence to ensure that it was ready for hearing on 10 February 2010.

3. Orders were made by Newnes JA that the appellants' case be filed and served by 21 December 2009 and the respondent's answer by 22 January 2010.  The appellants' case was filed on 21 December 2009 (on time), and the respondent's answer on 27 January 2010 (five days late).  The parties attended an appointment before Registrar Bush on 15 January 2010 to settle the appeal book indexes.  She made an order on that day that the appellants file and serve amended draft appeal book indexes by 18 January 2010.  She also informed the appellants that an order would be made once the indexes were approved for the books to be filed and served by 29 January 2010.

4. The amended appeal book indexes were filed on 21 January 2010 (three days late).  Registrar Bush approved them with some amendment on 22 January 2010, and made an order on the same day that the appeal books be filed and served by 29 January 2010. 

5. In the late afternoon on 3 February 2010 the Court was informed by Craig Gough of Minter Ellison, for the respondent, that Corser and Corser, for the appellants, had provided an inadequate set of papers purporting to be the appeal books for checking and signing of the certificate of correctness.

6. The appellants have filed today, shortly before the commencement of this hearing, two affidavits.  The first is an affidavit of Michelle Collins sworn 5 February 2010, and the second is an affidavit of Kyriakos Savas, also sworn 5 February 2010.  The deponents to these affidavits are an articled clerk and a solicitor respectively, employed by Corser and Corser, the solicitors for the appellants.  They depose as to the circumstances

surrounding the deficiency in the preparation of the appeal books and the dealings between Corser and Corser and Minter Ellison in relation to them.  It is sufficient for present purposes to note that I am satisfied on the basis of the material in these affidavits, and on the basis of an inspection I have carried out in the course of the hearing today of the proposed appeal books, that it is not appropriate to make an order dismissing the appeal pursuant to the notice to attend dated 4 February 2010.

1. The orders that I propose to make in the context that the appeal has been listed for hearing next Wednesday 10 February 2010, are that the appellants are to file the appeal books by 4.00 pm today, that the certificate of correctness in the appeal books is to be signed by the solicitor for the appellants, and that signature of the certificate by the solicitor for the respondent is to be dispensed with.

2. As regards the issue of the costs of the preparation of the appeal book and the costs of the hearing today, I would refer to the coram hearing the appeal the question as to who should bear these costs, including whether the solicitor for any party should be ordered personally to bear any of them.

3. NEWNES JA:  I agree with Buss JA.