Hall v Hall

[2007] WASCA 94

HALL -v- AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL [2007] WASCA 94

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 94
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:53/2007	Heard:	27 APRIL 2007
Coram:	McLURE JA	Delivered:	27/04/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for stay of execution dismissed Application for extension of time adjourned
Category:	B
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Parties:	NANCY CLOONAN HALL AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL
Catchwords:	Practice and procedure Application for stay of execution Application for extension of time to appeal Insufficient evidence to grant applications Turns on own facts
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 43
Case References:	Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 Gallo v Dawson (1990) 64 ALJR 458

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HALL -v- AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL [2007] WASCA 94 CORAM : McLURE JA HEARD : 27 APRIL 2007 DELIVERED : 27 APRIL 2007 FILE NO/S : CACV 53 of 2007 BETWEEN : NANCY CLOONAN HALL

Appellant

AND

AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

Citation : AUDREY FRANCES HALL as Executrix of the Will of KENNETH DUNCAN HALL (Dec) v HALL [2007] WASC 34

File No : CIV 2073 of 2003

(Page 2)

Catchwords:

Practice and procedure - Application for stay of execution - Application for extension of time to appeal - Insufficient evidence to grant applications - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43

Result:

Application for stay of execution dismissed

Application for extension of time adjourned

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr R J McCormack

Solicitors:

Appellant : In person
Respondent : McCallum Donovan Sweeney

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

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Gallo v Dawson (1990) 64 ALJR 458


(Page 3)

1 McLURE JA: This is an application for an extension of time to appeal against a decision of Jenkins J dated 19 February 2007 awarding the respondent estate $2,301,010.28 pursuant to a mortgage. Jenkins J ordered, inter alia, that the respondent be entitled to take possession of two properties owned by the appellant that are the subject of the mortgage.

2 The appellant applies for an extension of time in which to appeal, leave to appeal (which is not required) and a stay of execution of Jenkins J's orders. She has provided three documents in support of her application being two affidavits and a document entitled "Grounds of Appeal". The appellant is unrepresented.

3 As to the application for an extension of time, the latest date for filing an Appeal Notice was 12 March 2007, being 21 days after Jenkins J's decision. The appellant filed an Appeal Notice 15 days out of time on 27 March 2007. The appellant's documents do not disclose any reason for this delay.

4 The test for an extension of time is discussed in Gallo v Dawson (1990) 64 ALJR 458 at 459. Regard must be had to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences to the parties of the grant or refusal of the application and the prospects of success of the appeal.

5 Going firstly to the merits. Based on the material filed by the appellant in these proceedings, she is contending that the trial Judge made errors of fact and law. However, the appellant relies on evidence not given at trial to support that claim. As appears from par 4 of the judgment of Jenkins J, the appellant did not present any evidence at trial. The trial Judge said:

"This matter commenced before me as a trial held in the presence of both parties. The [respondent] was at all times represented by counsel. The [appellant] was unrepresented. After the first two days of the [respondent's] case I adjourned the trial to enable the [appellant] to prepare her defence to the [respondent's] claim. Considerable assistance was offered to the [appellant] by the Court to help her to prepare her defence. Despite this, and an adjournment of some months, the [appellant] failed to appear for the balance of the trial. Consequently, she did not present any evidence or any submissions for my consideration. Therefore, this action will be

(Page 4)

decided on the basis of the evidence presented in the [respondent's] case."

6 There is nothing in the material before me to establish that the trial Judge made any arguable error of law or fact on the evidence before her, or that the appellant has been denied natural justice or procedural fairness in the circumstances that her Honour has detailed in her reasons. There being no arguable error, I would ordinarily dismiss the application for an extension of time to appeal.

7 I turn now to the application for a stay of proceedings. Under r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA), the discretion to stay an action pending an appeal is unfettered and the applicant for the stay carries the onus of showing that the circumstances are appropriate for a stay to be granted. The Full Court in Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 distilled the relevant principles.

8 One of those principles requires that the appeal have reasonable prospects of success. That is an initial hurdle to be overcome before a stay can be considered. In this case, as I said earlier, there is no material before me that would give rise to an arguable ground of appeal. I would therefore dismiss the stay application on the basis of the material currently before me.

9 The appellant states from the bar table that there are further relevant matters relating to her fitness and capacity to attend at the trial that she wishes to put before the Court. I propose to give her an opportunity to put that material in affidavit form, explaining why she did not attend at trial and annexing any relevant material or other evidence establishing independently that she was physically or mentally incapable of attending the trial at the time. She should also, in her affidavit evidence, identify what she says are the grounds and evidence on which she would have defended the respondent's action. Accordingly, I propose to adjourn the appellant's application for an extension of time.