Deepsilver Pty Ltd v Aquatherm Australia Pty Ltd

[2007] WASCA 256

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.