Duffy v Wesfarmers Ltd
[2015] WASCA 125
•19 JUNE 2015
DUFFY -v- WESFARMERS LTD [2015] WASCA 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 125 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:63/2015 | 3 JUNE 2015 | |
| Coram: | McLURE P BUSS JA | 19/06/15 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | COLIN DOUGLAS DUFFY JAMIE EMETTE DUFFY WESFARMERS LTD (formerly WESTRALIAN FARMERS CO-OPERATIVE LTD) |
Catchwords: | Application for extension of time to appeal Delay in excess of 30 years |
Legislation: | Nil |
Case References: | Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUFFY -v- WESFARMERS LTD [2015] WASCA 125 CORAM : McLURE P
- BUSS JA
- JAMIE EMETTE DUFFY
Appellants
AND
WESFARMERS LTD (formerly WESTRALIAN FARMERS CO-OPERATIVE LTD)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : KENNEDY J
File No : CIV 1424 of 1982
Catchwords:
Application for extension of time to appeal - Delay in excess of 30 years
Legislation:
Nil
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : Mr M Cornes
Solicitors:
Appellants : In person
Respondent : Gary Smith
Case(s) referred to in judgment(s):
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
1 McLURE P: This is an application for an extension of time of more than 30 years in which to appeal.
2 The judgment the subject of the extension application was delivered by Kennedy J on 6 February 1984. The judgment is 289 pages. Kennedy J dismissed the plaintiffs' claims of breach of an oral agreement entered into in or about June 1977, an alleged unlawful conspiracy by the defendants to repudiate the June 1977 agreement and to set aside on the grounds of duress, undue influence and/or undue pressure certain legal instruments (including a Master Deed, Deed of Assignment and Mortgage).
3 The trial was conducted over 92 days. The associate's record shows there were 55 witnesses and 418 exhibits. The court is no longer in possession of the exhibits. The 377 grounds of appeal on which the appellants rely and submissions in support extend over 504 typed pages.
4 The factors to be taken into account in determining whether to grant an extension of time in which to commence an appeal include the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondents: Jackamarra v Krakouer (1998) 195 CLR 516.
5 The first-named appellant has sworn an affidavit in support of the extension application. There are five main reasons for the delay. They are the existence of severe financial constraints from time to time; the death of the appellants' instructing solicitor in January 1994; new hearsay evidence that emerged in 1997 from an alleged recanting witness who died in 1998; the appellants' marriage break down and divorce; and the first-named appellant's responsibilities as a full-time carer for his handicapped son since 2001. The matters relied on do not, individually or collectively, provide an adequate explanation or justification for commencing an appeal more than three decades out of time.
6 An overwhelming majority of the proposed grounds of appeal challenge the correctness of credibility based findings. A finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case: Fox v Percy (2003) 214 CLR 118.
7 The Fox v Percy test presents a very significant hurdle for the appellants. In any event, they have not provided the court with all the necessary material (the trial transcript and the exhibits) to begin to make any meaningful assessment of the merits of the grounds of appeal or their materiality to the outcome of the appeal. Further, the only respondent to the appeal, Wesfarmers Ltd, was not a party to the action and there is no evidence that it assumed any liability of the three named defendants to the action (being Westralian Farmers Cooperative Ltd, which converted to a public company now named Westralian Farmers Ltd, Masters Dairy Ltd and Sunnywest Dairies Ltd).
8 However, even if the appeal had a reasonable prospect of succeeding, the extension application must be refused. The successful defendants to the action have a vested right to retain the judgment the subject of the extension application. That right vested over 30 years ago and should not now be disturbed. Further, the defendants would be very significantly prejudiced in having to relitigate the multitude of credibility issues determined against the appellants such a long time ago. The public interest in the due and proper administration of justice would also be significantly prejudiced. To grant this extension of time to the appellants would be to deny justice to the defendants.
9 The appellants' application for an extension of time to appeal must be dismissed.
10 BUSS JA: I agree with McLure P.
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