Detiuk v The Insurance Commission of Western Australia

[2002] WASCA 247

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   DETIUK -v- THE INSURANCE COMMISSION OF WESTERN AUSTRALIA [2002] WASCA 247

CORAM:   MALCOLM CJ

STEYTLER J
TEMPLEMAN J

HEARD:   24 JULY 2002

DELIVERED          :   24 JULY 2002

FILE NO/S:   FUL 131 of 1999

BETWEEN:   ANNA DETIUK

Appellant (Plaintiff)

AND

THE INSURANCE COMMISSION OF WESTERN AUSTRALIA
Respondent (Defendant)

Catchwords:

Appeal - Practice and procedure - Dismissal of appeal for want of prosecution - Gross delay - No step taken by appellant following notice by respondent of intention to appeal on 20 September 1999

Legislation:

Nil

Result:

Appeal dismissed for want of prosecution

Category:    B

Representation:

Counsel:

Appellant (Plaintiff)        :     In person

Respondent (Defendant) :     Mr B E Lawrence

Solicitors:

Appellant (Plaintiff)        :     In person

Respondent (Defendant) :     Lawrence & Howell

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

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Case(s) also cited:

Nil

1. MALCOLM CJ:  This is an application to dismiss this appeal for want of prosecution.  The application is made by way of a summons dated 19 June 2002 and has been made returnable before the Court on this day.  The application is supported by an affidavit from the applicant's solicitor, Mr Lawrence, who is the solicitor for the Insurance Commission of Western Australia, the respondent, and also for the first and second defendants in the District Court action.

2. This was an action for damages for negligence arising out of a motor vehicle accident in respect of which the learned District Court Judge delivered judgment on 12 August 1999 dismissing the action.  The learned Judge found that he was not satisfied that the appellant had suffered any injuries caused by the defendants in the action and, consequently, that the appellant was not entitled to any damages.  Her claim was dismissed.

3. Subsequently the respondent's solicitors were served with a notice of appeal on 7 September 1999.  On 20 September 1999 the respondent filed a notice of intention to appear.  Subsequent to that date no steps have been taken by the appellant to prosecute the appeal and it is against that background that the application is made to strike out the appeal for want of prosecution.  Under O 63 r 7(1):

   "Unless the Full Court or a Judge otherwise orders an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal."

4. Consequently, by the end of 1999 the appeal should have been listed for hearing and it is now almost 3 years out of time.  That is a delay which can only be described as gross in the extreme.

5. The appellant says that because of her own physical condition and her responsibilities for children she has been unable to take any steps to prosecute the appeal, even to the point of consulting a solicitor or making an application for legal aid or take any other step of whatsoever nature to prosecute the appeal.

6. There is no application before the Court for an extension of time within which to appeal and, in my view, having regard to the length of time, this can only be described as a case of exceptionally long delay.  If an appellant is not pursuing his or her appeal in accordance with the time limits provided in the Rules of the Supreme Court the appropriate course is for the respondent to apply to the Court on motion with a supporting affidavit for the appeal to be dismissed for want of prosecution.  That is the step that has been taken in this case. 

1. It has been held in a number of cases that gross delay on the part of the appellant is required before the power to dismiss for want of prosecution may be exercised:  Jackamarra v Krakouer [1998] HCA 27 at [7]; (1998) 195 CLR 516 at 521, sets out that in the situation where there has been gross delay the appellant will be liable to have the appeal dismissed for want of prosecution.

2. While I have a great deal of sympathy for the appellant, it has long been established that once an action has been determined in favour of a particular party that party has a vested interest in retaining the benefit of the judgment, subject only to the right of appeal and the prosecution of the appeal without delay. 

3. In my view, as I say, while I have every sympathy with the appellant, this is a circumstance in which the entitlement of the respondent to the benefit of the judgment in its favour is a paramount consideration, having regard to the extreme length of the delay in the circumstances of this case.  Consequently, I am of the view that the motion to strike out the appeal for want of prosecution should be granted.

4. STEYTLER J:  I agree.

5. TEMPLEMAN J:  I agree also.