Ibrahim v The Honourable Justice Carolyn Martin
[2013] WASCA 14
IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2013] WASCA 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 14 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:48/2012 | 18 SEPTEMBER 2012 & ON THE PAPERS | |
| Coram: | BUSS JA MURPHY JA | 6/02/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to file appellant's case dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TAREK IBRAHIM THE HONOURABLE JUSTICE CAROLYN MARTIN |
Catchwords: | Practice and procedure Appellant failed to comply with rules of court Application for an extension of time to file appellant's case No satisfactory explanation for non-compliance Application for an extension of time dismissed Appeal dismissed |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5, r 26, r 43(2)(g) |
Case References: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Dodds v Kennedy [2011] WASCA 32 Hayes v Powers (Unreported, WASCA, Library No 990103, 5 March 1999) Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2013] WASCA 14 CORAM : BUSS JA
- MURPHY JA
- Appellant
AND
THE HONOURABLE JUSTICE CAROLYN MARTIN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2012] WASC 338
File No : CIV 3020 of 2010
(Page 2)
Catchwords:
Practice and procedure - Appellant failed to comply with rules of court - Application for an extension of time to file appellant's case - No satisfactory explanation for non-compliance - Application for an extension of time dismissed - Appeal dismissed
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5, r 26, r 43(2)(g)
Result:
Application for an extension of time to file appellant's case dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C J Thatcher
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Dodds v Kennedy [2011] WASCA 32
Hayes v Powers (Unreported, WASCA, Library No 990103, 5 March 1999)
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41
(Page 3)
1 REASONS OF THE COURT: These reasons deal with matters heard by the court on 18 September 2012, and in subsequent supplementary written submissions.
2 By notice dated 29 August 2012, the registrar of the Court of Appeal notified the parties to attend a hearing on 18 September 2012 in order to consider the appellant's application for an extension of time to file his case.
3 The appellant is a litigant in the Family Court of Western Australia. The respondent was a judge of that court. There have been numerous appeals commenced by the appellant in relation to the litigation in the Family Court, including against interlocutory decisions of that court.
4 On 16 December 2010 the appellant filed an originating motion (bearing date 14 December 2010) in the Supreme Court of Western Australia seeking orders for the 'investigation' of particular matters arising out of the proceedings in the Family Court between 2006 and 2010.
5 On 15 April 2011, Kenneth Martin J ordered that a copy of the motion be served on the respondent's solicitors. This was done by the Acting Principal Registrar of the Supreme Court.
6 On 11 August 2011 the respondent's solicitors filed and served a summons seeking orders that the originating motion be struck out and that the action against the respondent be dismissed.
7 The respondent's strike out action was listed for hearing on 16 January 2012. By that time the appellant had filed, but not served, a chamber summons seeking to amend the orders in the originating motion. The chamber summons sought, inter alia, an order that the case be heard by an interstate judge. The respondent's strike out application was adjourned to allow consideration to be given to the appellant's chamber summons.
8 The strike out application was relisted before Beech J on 24 May 2012. His Honour also had before him the appellant's chamber summons dated 9 January 2012 and an amended chamber summons dated 22 May 2012. During the strike out application, the appellant sought the opportunity to put on further evidence in relation to the respondent's application. Beech J proposed that the parties be given a period of time to file any further affidavit evidence and written submissions, and then the judge would decide whether the matter would be determined on the papers or that an oral hearing would be required (ts 31). The appellant said that
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- he did not agree to that course, as it would affect his ability to subpoena certain witnesses and certain documents from the Family Court (ts 32 - 33). Beech J said that these were matters that the appellant could address in the submissions that he was to file, and that his Honour would take these matters into account when determining whether the matter should be determined on the papers or after a further oral hearing (ts 38). His Honour ordered that:
(a) the appellant file and serve any further affidavits or submissions by 2 July 2012;
(b) the respondent file and serve any material in response by 16 July 2012; and
(c) thereafter, the matter be heard on the papers unless the court determined otherwise.
Beech J also refused to make an order appointing an interstate judge to hear the matter.
9 On 30 May 2012, the appellant filed an appeal notice against Beech J's interlocutory directions of 24 May 2012. (An amended appeal notice was filed on 27 July 2012.)
10 The appellant's case was required to be filed within seven days after the date on which the notice of appeal was filed. It was not.
11 The appellant eventually filed an application to extend the time for filing his case on 21 August 2012. The appellant, by his affidavit in support, sworn 21 August 2012, stated that:
(a) in the previous four and a half weeks (ie since about mid-July 2012) there had been a fasting period for Ramadan, during which he was not able to prepare the appellant's case and he had also not been physically well;
(b) the 'original case took so long to be heard in the court before three different judges'; and
(c) he had 'filed a similar case in the High Court against the same respondent' and he 'would like to wait and see how it is progressing'.
12 The second point was not explained and the court was not provided with a copy of any material said to have been filed in the High Court. As
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- to the first point, the appellant said in oral submissions that Ramadan had commenced on 20 July 2012 and finished on 18 August 2012. It is to be noted that in his application, the appellant does not seek to extend the time for filing his case to a particular point in time, but rather seeks a general dispensation to file it at a time of his choosing.
13 At the hearing on 18 September 2012, the court ordered that the appellant have until 2 October 2012 to file and serve any further submissions and affidavits as to whether the appellant should be granted an extension of time to file the appellant's case and as to whether the court should dismiss the appeal under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules. The appellant filed an affidavit on 3 October 2012. In the affidavit the appellant said that he was suffering from damage to his nervous system and that the pain was particularly bad in June, July and August due to the cold weather. He summarised his symptoms as including 'painful crawling sensation, chronic fatigue, weakness of the muscles and feeling the heat and the cold greater than a healthy person'. The appellant requested further time until the weather became warmer so that he would be able to use his arm without too much pain.
14 The appellant attached two letters to his affidavit. The first was an unsigned letter from a neurologist dated 10 March 2009 which is addressed to a doctor whose name has been blanked out. The letter stated that the neurologist, on his limited examination, suspected that the appellant had demyelinating disease and that he had arranged for him to have urgent tests. The appellant did not furnish the court with any further medical evidence as to whether any tests were undertaken, his current condition, his diagnosis, or the nature or extent of any disabilities.
15 The second letter was a letter of referral from one doctor to another, bearing two dates, one is 21 March 2012 and the other is 13 August 2012. The letter does not provide any further information on the appellant's illness, and the reference to the reason for referral has been blanked out. In the affidavit, the appellant stated that he had blanked out references to any sensitive information.
16 The orders of Beech J were interlocutory. An interlocutory civil appeal must be commenced within 14 days after the date of the decision being appealed: pt 5 r 26 of the Supreme Court (Court of Appeal) Rules 2005 (WA). In this matter there was no contention that the appeal was not commenced within time in accordance with pt 5 r 27.
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17 Once an appeal has been lodged in time, generally the principal considerations relevant to an application to extend time for taking a step in the appeal will be the length of time involved, the reasons for the breach of the rules and whether the respondent or the administration of the court's business would be prejudiced by granting the application. The merits of the appeal are also relevant if the court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time, although any assessment of the merits must take proper account of the limitations inherent in that process in this context: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, 520 - 521, 542 - 543; Hayes v Powers (Unreported, WASCA, Library No 990103, 5 March 1999); Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41 [8]. An appeal will ordinarily be devoid of merit for this purpose if it can be properly shown that none of the grounds has a reasonable prospect of succeeding within the meaning of pt 5 r 43(2)(g)(i) of the Court of Appeal Rules.
18 In our view the application for an extension of time should be dismissed. The appellant has not provided an adequate explanation for the delay in filing his case. Although the appellant stated that the illness referred to in the letter from the neurologist dated 10 March 2009 is 'on-going', he did not provide any medical evidence in that regard. Furthermore, there is no adequate explanation as to how or why the appellant's fasting for Ramadan, which in any event did not commence until approximately six weeks after his case was due to be filed, has precluded him from preparing his case in a timely fashion.
19 The decision appealed from is an interlocutory decision involving practice and procedure. A tight rein should be kept on appeals against decisions on matters of practice and procedure which do not affect substantive rights. Special restraint must be exercised when the interlocutory order under appeal is one concerning practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177; Dodds v Kennedy [2011] WASCA 32 [5]. The appellant has not filed or put before the court a draft of his case, or an outline of the case that he would seek to file if leave were granted. Nor has he sought otherwise to point to any error by Beech J.
20 It is a notorious fact that the respondent died on 2 October 2012. The litigation commenced and maintained by the appellant against the respondent appears to have been a personal proceeding against her. It is unnecessary, however, to decide whether the appeal has abated.
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21 Having regard to the length of time involved, that there has been no adequate explanation for the delay, and that the business of the court would be prejudiced by an appeal from an interlocutory decision on practice and procedure in respect of which no alleged error has been articulated, the application for leave to extend time should be dismissed. Moreover, it is also an important consideration that the proper administration of justice requires any litigation involving claims against a judge to be dealt with in a timely and proper way.
22 The respondent, in her submissions, also contended that if the application for an extension of time is dismissed, the appeal should be dismissed pursuant to pt 5 r 43(2)(g)(ii) on the basis that the appellant has not obeyed the rules of court. In the circumstances recounted above, the appeal should be dismissed.
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