D'Souza v Barclays Building Services (WA) Pty Ltd
[2021] WASCA 35
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: D'SOUZA -v- BARCLAYS BUILDING SERVICES (WA) PTY LTD [2021] WASCA 35
CORAM: BUSS P
MITCHELL JA
HEARD: 19 FEBRUARY 2021
DELIVERED : 19 FEBRUARY 2021
PUBLISHED : 26 FEBRUARY 2021
FILE NO/S: CACV 82 of 2020
BETWEEN: CHRISTOPHER LLOYD D'SOUZA
Appellant
AND
BARCLAYS BUILDING SERVICES (WA) PTY LTD
First Respondent
CHRISTOPHER BESTALL
Second Respondent
DEAN THAKE AND SAMANTHA THAKE trading as SELECT FLOORING
Third Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
Citation: D'SOUZA -v- BARCLAYS BUILDING SERVICES (WA) PTY LTD [2020] WADC 87
File Number : CIV 365 of 2016
Catchwords:
Appellate procedure - Application for an extension of time to comply with springing order - Turns on own facts
Legislation:
Nil
Result:
Application for an extension of time to comply with springing order dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | K Wood |
| Second Respondent | : | D R Clyne |
| Third Respondent | : | D M McKenna |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Moray & Agnew Lawyers |
| Second Respondent | : | McCabe Curwood |
| Third Respondent | : | Mills Oakley |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
Krysiak v Housing Authority [2020] WASCA 119
Neil v Nott (1994) 68 ALJR 509
REASONS OF THE COURT:
At the conclusion of the hearing of the appellant's application for an extension of time in which to comply with a springing order, we ordered that the application be dismissed, with reasons to be published later. These are our reasons for dismissing that application.
Background
The appeal is against the dismissal of the appellant's personal injury claim in the District Court.[1] In very broad summary, the claim was that the appellant suffered injury from dust generated from the repair of water damaged flooring, for which the respondents were variously responsible. The trial judge found that the appellant was owed a relevant duty of care by each of the respondents. However, the appellant had not established that any of the respondents had breached their duty of care by failing to take any precaution against the risk of harm by dust which a reasonable person in their position would have taken. Further, the trial judge found that the appellant had not established that his medical symptoms were caused by or materially contributed to by any fault on the part of the respondents.
[1] D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87.
The date of the primary decision was 19 June 2020. An appeal notice was filed on 13 July 2020.
On 18 August 2020, by consent, the time for filing and serving an appellant's case was extended to 31 August 2020. On 2 September 2020, a further extension to 16 September 2020 was granted by consent.
By an application in an appeal filed on 5 October 2020, the appellant sought a further extension of time for filing an appellant's case to 23 November 2020. The appellant deposed,[2] and informed the court at the hearing of the application,[3] that he had engaged lawyers to assist him in the preparation of an appellant's case which complied with the Supreme Court (Court of Appeal) Rules 2005 (Rules). On 9 October 2020, Mitchell JA granted that further extension, but made a springing order so that, unless by 4.00 pm on 23 November 2020 the appellant filed and served an appellant's case that complied with the Rules, the appeal would be dismissed.
[2] Appellant's affidavit sworn 2 October 2020, par 7 - 19.
[3] Appeal ts 4 - 6.
As the appellant did not file an appellant's case which complied with the Rules by 23 November 2020, the appeal was dismissed on that date by operation of the springing order.
The extension application
By an application in an appeal dated 21 December 2020, the appellant sought an extension of time in which to comply with the springing order to 15 February 2021. In his supporting affidavit sworn 21 December 2020, the appellant deposed that he is unable to raise funds to secure legal assistance to prepare his appellant's case. While he lodged a document with the Court of Appeal office on 23 November 2020, the document was rejected for filing on the basis that it did not comply with the Rules. The appellant deposed that he received correspondence from the court dated 8 December 2020 explaining why the document he had attempted to file did not comply with the Rules. He deposed that this letter gave him a better understanding of the errors he had made, and that he sought an extension until 15 February 2021 to file an appellant's case which complies with the Rules. The appellant's affidavit also deals with his mental state, and contains submissions as to the merits of his appeal.
In his oral submissions, the appellant made general allegations that the representatives of the respondents had falsified documents, procured witnesses to lie on oath and suppressed material which they had a duty to disclose. He gave what he submitted were specific examples of that conduct but, with respect, we did not find those submissions to be persuasive.
The appellant indicated in submissions that, if he was given until the end of April 2021, he would finalise everything at that stage.
General principles
The principles governing the determination of an application to extend time to comply with a springing order were summarised by this court in A v C [No 2],[4] in the following terms:
[4] A v C [No 2] [2015] WASCA 199 [2] - [4], recently adopted by this court in Krysiak v Housing Authority [2020] WASCA 119 [87].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity …
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]
(citations omitted)
Disposition
We are not satisfied that it is in the interests of justice to grant an extension of time to comply with the springing order at this stage. The judgment under appeal was given on 19 June 2020, and this appeal has been on foot since 13 July 2020. Despite the appeal being on foot for over seven months, no appellant's case which complies with the Rules has been filed. The appellant has been given a number of opportunities to do so, but has failed to prepare a document which complies with the Rules or which would enable this court to properly deal with this appeal. At the time of the hearing on 19 February 2021, no form of proposed appellant's case capable of being accepted for filing had been produced to the court. That was despite the extended time for filing an appellant's case sought by the latest extension application (15 February 2021) having passed.
It is also relevant to note that the last extension was granted on the basis of the appellant indicating to the court that he had engaged legal assistance for the preparation of a compliant appellant's case. It appears from the appellant's latest affidavit that, at the time he obtained the last extension, he was aware that he could not raise the funds required by counsel to assist him. That is, the last extension was granted on the basis of the appellant's misleading statements to the court. It now appears that the appellant is unable to obtain legal assistance and proposes to prepare the documents himself. The history of the proceedings indicates the appellant lacks the capacity to prepare compliant documents himself in any reasonable timeframe. The appellant's oral submissions did nothing to suggest that he has that capacity.
Although the respondents are separately insured, the ongoing proceedings occasion their respective insurers legal costs, which there appears to be little prospect of recovering from the appellant. While a refusal of an extension means that the appeal remains dismissed, the grant of an extension of time at this stage would appear to be an exercise in futility in the absence of the appellant providing the court with some evidence of his capacity to now comply with the requirement to file an appellant's case (such as a compliant minute or draft appellant's case that could be filed within the extended time).
It is difficult, at this stage, for this court to assess whether the appellant's appeal might have reasonable prospects of success, given the length and complexity of the primary judgment, and the content and prolixity of the appellant's submissions. While nothing in the appellant's oral or written submissions caused us to doubt the correctness of the primary decision, we are conscious of the risk that misconceived advocacy by an unrepresented litigant may conceal a meritorious point.[5] However, even allowing for the possibility that there might be some arguable ground available to the appellant, given the other considerations to which we have referred, it would not be in the interests of justice to grant an extension of time at this stage.
[5] Neil v Nott (1994) 68 ALJR 509, 511.
For these reasons, at the conclusion of the hearing, we refused the application for an extension of time in which to comply with the springing order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
26 FEBRUARY 2021
0
5
0