Flynn v National Australia Bank [No 2]
[2009] WASCA 102
•12 JUNE 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FLYNN -v- NATIONAL AUSTRALIA BANK [No 2] [2009] WASCA 102
CORAM: NEWNES JA
HEARD: 12 JUNE 2009
DELIVERED : 12 JUNE 2009
PUBLISHED : 17 JUNE 2009
FILE NO/S: CACV 47 of 2009
BETWEEN: ROBERT FLYNN
Appellant
AND
NATIONAL AUSTRALIA BANK
Respondent
ON APPEAL FROM:
For File No : CACV 47 of 2009
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 2783 of 2008
Catchwords:
Practice and procedure - Appeal - Application for extension of time to file appellant's case - Turns on own facts
Legislation:
Nil
Result:
Extension of time granted
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr C S Gough
Solicitors:
Appellant: In person
Respondent: Minter Ellison
Case(s) referred to in judgment(s):
Nil
NEWNES JA:
(This judgment was delivered ex tempore on 12 June 2009 and has been edited from the transcript.)
I have before me an application by the appellant, in effect, for an extension of time in which to file the appellant's case. The appellant is acting in person.
The appeal arises out of proceedings by the respondent against the appellant in the Supreme Court claiming money it alleged was due and payable by the appellant under a guarantee, and for possession of the appellant's property in Connolly over which the respondent held a registered mortgage.
On 7 April 2009, Master Sanderson ordered that the appellant deliver up possession of the property to the respondent within 28 days.
On 24 April 2009, the appellant commenced this appeal against that decision.
The appellant then applied for a stay of the order of Master Sanderson pending the determination of the appeal. The stay application was opposed by the respondent. On 15 May 2009, Pullin JA dismissed the application.
The time within which the appellant was required to file his case expired on 29 May 2009. On 26 May 2009, the appellant filed an application for what is described as an abridgement of time to file evidence. In fact it should be, and I intend to treat it as, an application for an extension of time to file the appellant's case.
It is apparent from the appellant's affidavit in support of the application that the appellant is under a misunderstanding as to what is required of him at this stage of the appeal process. That affidavit reveals that the appellant is seeking to obtain, in the course of other proceedings in the General Division of this court, a number of financial and accounting documents in support of a contention in the appeal that he has a claim against the respondent which exceeds the amount owing by him to the respondent. I understand that none of those documents was in evidence before Master Sanderson.
It is unnecessary to determine the relevance of those documents to the ultimate determination of the appeal or whether documents obtained in the course of, or for the purposes of, other proceedings may be used for that purpose. But as I mentioned to the appellant in the course of the hearing today, those are matters to which he will need to give careful consideration.
In any event, it is not apparent that any of that material is necessary to enable the appellant to prepare and file the appellant's case. What is required for that purpose is set out in r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). No purpose would be served by attempting to summarise or describe the contents of that rule; it speaks for itself.
The appellant's case is now two weeks out of time. While there has been some delay, it is not substantial and an explanation has been offered for the delay, albeit the delay was a consequence of the appellant's misapprehension as to his obligations under the rules. There is no suggestion that the respondent would be prejudiced if the time were extended.
The appellant has recently been advised by the Law Society that he will be provided with some limited pro bono legal assistance in respect of the appeal, subject to a solicitor being willing to take on that task. At this stage, a solicitor has not been obtained and that is a matter to be taken into account in considering what would be an appropriate extension of time.
In the circumstances, I consider it is appropriate that the appellant be granted a further period of time to file and serve the appellant's case and I would allow a further three weeks for that purpose. Accordingly, I would extend the time to 3 July 2009. The parties will have liberty to apply.
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