DEEPSILVER PTY LTD -v- AQUATHERM AUSTRALIA PTY LTD [2007] WASCA 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 256
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:40/2007	Heard:	9 NOVEMBER 2007
Coram:	PULLIN JA NEWNES AJA	Delivered:	8/11/07
No of pages:	3	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DEEPSILVER PTY LTD AQUATHERM AUSTRALIA PTY LTD
Catchwords:	Appeal Dismissal of appeal by reason of noncompliance with an order of the court
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 43
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEEPSILVER PTY LTD -v- AQUATHERM AUSTRALIA PTY LTD [2007] WASCA 256 CORAM : PULLIN JA

NEWNES AJA

HEARD : 9 NOVEMBER 2007 DELIVERED : 9 NOVEMBER 2007 FILE NO/S : CACV 40 of 2007 BETWEEN : DEEPSILVER PTY LTD

Appellant

AND

AQUATHERM AUSTRALIA PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER SCHOOMBEE

Citation : DEEPSILVER PTY LTD -v- AQUATHERM AUSTRALIA PTY LTD [2007] WADC 13

File No : CIV 2415 of 2003

Catchwords:

Appeal - Dismissal of appeal by reason of noncompliance with an order of the court

(Page 2)

Legislation:

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

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S D Pentony

Respondent : Mr P Redding

Solicitors:

Appellant : Hotchkin Hanly

Respondent : Redding & Associates

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

Nil

(Page 3)

1 PULLIN JA: On 17 August 2007 Buss JA ordered that the appellant provide security for the respondent's costs of the appeal in the sum of $18,500, that sum to be paid by 31 August 2007. This was an interim order pursuant to r 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The order had not been complied with and there is no explanation or excuse offered for non-compliance.

2 Counsel for the appellant has informed the court that the appellant does not wish to proceed with the appeal. A single judge is given power to exercise the powers of the Court of Appeal in r 43 and one of these powers is to dismiss the appeal if the appellant has not obeyed those rules or any order made under them.

3 If such an order is made it is taken to be an order of the Court of Appeal. The Court of Appeal therefore impliedly has power to make an order that a single judge may make under r 43 and the appeal should therefore be dismissed as a result of the appellant's failure to obey the order of Buss JA of 17 August 2007.

4 NEWNES AJA: I agree.

CaseChat Overview and Summary

The matter before the court involved Deepsilver Pty Ltd, the appellant, and Aquatherm Australia Pty Ltd, the respondent. The dispute arose out of an agreement between the parties, and the appellant sought to appeal the decision of the primary judge. The case was heard in the Supreme Court of Victoria. The appellant argued that the primary judge's decision was incorrect in law and sought to have it overturned on appeal. The respondent, on the other hand, contended that the appeal should be dismissed due to the appellant's failure to comply with an order of the court.
The central legal issue before the court was whether the appeal should be dismissed due to non-compliance with a court order, and if so, what the consequences of such dismissal would be. The court had to consider the relevant rules of court, as well as any relevant precedents, to determine the appropriate course of action. In doing so, the court had to weigh the importance of ensuring the proper administration of justice against the appellant's right to have their appeal heard.
In reaching its decision, the court found that the appellant had indeed failed to comply with a specific order of the court, which was a requirement for proceeding with the appeal. The court held that the non-compliance was significant and that it went to the very heart of the appellant's case. As such, the court found that the appeal should be dismissed due to non-compliance with the order. The court further held that the dismissal of the appeal was without prejudice to any other rights or remedies that the parties may have. In light of this decision, the court made the necessary orders to dismiss the appeal.

Deepsilver Pty Ltd v Aquatherm Australia Pty Ltd

DEEPSILVER PTY LTD -v- AQUATHERM AUSTRALIA PTY LTD [2007] WASCA 256

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established