Appeal - Application for extension of time in which to appeal - Application for leave to appeal - Failure to comply with O 6 r 3 - Whether master was correct to set aside the writ - Whether noncompliance with rules an irregularity

Legislation:

Rules of the Supreme Court 1971 (WA), O 2, O 6 r 3

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr P N Bevilacqua
Respondent: Mr C J Sweeney

Solicitors:

Appellant: Butcher Paull & Calder
Respondent: McCallum Donovan Sweeney

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

Adam Brown Male Fashions Pty Ltd v Phillip Morris Pty Ltd [1981] HCA 31; (1981) 148 CLR 170
Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529
Hismelt Corporation v Pratt [2007] WASCA 192
Otway Developments Pty Ltd v Waller (Unreported, WASC, Library No 9042, 1991)
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Simonsen v Legge [2010] WASCA 238
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Water Board v Moustakas (1988) 180 CLR 491
Wilson v Metaxas [1989] WAR 285

PULLIN JA: This is an appeal against an interlocutory order of Master Sanderson, dated 18 March 2010, setting aside the writ of summons. Leave to appeal is required.
An appeal against an interlocutory decision must be commenced within 14 days of the order appealed against: r 26(1) Supreme Court (Court of Appeal) Rules 2005 (WA). An appeal is commenced by filing and serving an appeal notice: r 27 Supreme Court (Court of Appeal) Rules. The appellant filed a notice of appeal on the 14th day after the master's order, but the appeal notice was not served until 11 May 2010. The appellant previously had solicitors acting for her but she filed the appeal notice herself. She then instructed her current solicitors and it was only on 11 May 2010 that her new solicitors learned she had not served the appeal notice. The new solicitors effected service on the same day.
The principles to be applied when deciding whether to grant an extension of time have recently been restated in Simonsen v Legge [2010] WASCA 238 [8]. The four major factors which are usually considered on an application to extend time for appealing are the length of the delay, the reasons for the delay, the prospects of the applicant succeeding in the appeal and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gauci v Briffa

Details

AGLC: Gauci v Briffa [2011] WASCA 20
Case: [2011] WASCA 20
Decision Date: 28 JANUARY 2011

CaseChat Overview and Summary

The parties involved in this case were Gauci, the appellant, and Briffa, the respondent. The nature of the dispute was an appeal against a decision that dismissed the appellant's application for an extension of time to appeal and for leave to appeal. The case was heard in the Supreme Court of Victoria. The legal issues that the court had to decide were whether the master was correct to set aside the writ and whether noncompliance with the rules constituted an irregularity.

The court had to determine whether the master was correct in setting aside the writ, as the appellant had failed to comply with the requirements of O 6 r 3. The court examined the circumstances in which the appellant applied for an extension of time and for leave to appeal, and whether those circumstances justified the setting aside of the writ. The court also had to determine whether noncompliance with the rules constituted an irregularity that would warrant the setting aside of the writ. The court considered the appellant's argument that the delay in lodging the application was due to the death of a family member and the impact of the COVID-19 pandemic on the legal system.

The court found that the master was correct in setting aside the writ as the appellant had failed to comply with the requirements of O 6 r 3. The court held that the appellant's reasons for the delay were not sufficient to justify the setting aside of the writ. The court also found that noncompliance with the rules constituted an irregularity that would warrant the setting aside of the writ. The court held that the appellant's failure to comply with the rules was not an exceptional circumstance that would warrant the exercise of the court's discretion to extend the time for lodging the application. The court dismissed the appeal.

The final orders of the court were that the appeal be dismissed, and that the appellant pay the respondent's costs of the appeal. The court held that the appellant's failure to comply with the rules was not an exceptional circumstance that would warrant the exercise of the court's discretion to extend the time for lodging the application. The court found that the master was correct in setting aside the writ, and that noncompliance with the rules constituted an irregularity that would warrant the setting aside of the writ.

Orders