Ibrahim v Wadworth
[2012] WASCA 47
•7 MARCH 2012
IBRAHIM -v- WADWORTH [2012] WASCA 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 47 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:159/2009 | 24 JANUARY 2012 | |
| Coram: | PULLIN JA NEWNES JA | 7/03/12 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | TAREK IBRAHIM MEGAN WADWORTH |
Catchwords: | Practice and procedure Appellant failed to comply with selfexecuting order ('springing' order) Appeal dismissed Application by appellant to extend time to comply with order Principles to be applied Application dismissed No satisfactory explanation for noncompliance No reasonable prospects of succeeding on appeal |
Legislation: | Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 Ibrahim v Wadworth [2009] WASC 317 Ibrahim v Wadworth [No 2] [2009] WASC 356 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- WADWORTH [2012] WASCA 47 CORAM : PULLIN JA
- NEWNES JA
- Appellant
AND
MEGAN WADWORTH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : IBRAHIM -v- WADWORTH [No 2] [2009] WASC 356
File No : CIV 2005 of 2009
Catchwords:
Practice and procedure - Appellant failed to comply with selfexecuting order ('springing' order) - Appeal dismissed - Application by appellant to extend time to comply with order - Principles to be applied - Application dismissed - No satisfactory explanation for noncompliance - No reasonable prospects of succeeding on appeal
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr S R Merrick
Solicitors:
Appellant : In person
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Ibrahim v Wadworth [2009] WASC 317
Ibrahim v Wadworth [No 2] [2009] WASC 356
(Page 3)
1 JUDGMENT OF THE COURT: On 24 October 2011, an order was made in this appeal that unless the appellant filed and served the appeal books by 11 November 2011, the appeal would stand dismissed. The appellant failed to comply with the order and the appeal was accordingly dismissed. The appellant has now applied for an extension of the time specified in the order so that he may file and serve the appeal books, and put the appeal back on foot.
2 We consider that the appellant has failed to establish grounds for an extension of time and that the application should be dismissed.
Background
3 The appeal has its origins in litigation in the Family Court of Western Australia between the appellant and his former partner following the breakdown of their de facto relationship. There was a child of the relationship and there have been numerous applications in the Family Court concerning the child's parenting. There have also been a number of appeals by the appellant to this court from decisions of the Family Court. The appellant has represented himself in those appeals, as it seems he has done in all of the proceedings in the Family Court.
4 On or about 21 November 2006, a trial relating to parenting matters between the appellant and his former partner was heard before a judge of the Family Court. The appellant represented himself in the Family Court. His former partner was represented by the respondent. During the course of the trial the appellant announced that he was not prepared to continue to attend the trial and left the court. The trial proceeded in his absence. After the appellant had left the court the respondent made a statement to the judge which the appellant says was defamatory of him.
5 The appellant further alleges that, on 6 May 2008, the respondent sent an email which was defamatory of him to the associate to the Family Court judge. The appellant says he found a copy of the email on the court file.
6 On 29 May 2009, the appellant commenced proceedings against the respondent. The indorsement of claim, so far as relevant, was as follows:
1. On Tuesday the 21/11/2006, the [respondent] defamed the [appellant] following him leaving a Family Court hearing in front of the trial judge.
(Page 4)
- 2. In an email sent by the [respondent] to the associate of the abovementioned judge dated the 6/05/2008, the [respondent] defamed the [appellant] again in his personality.
3. The [respondent] uses deceptive and misleading tactics in her presentation in order to gain unwarranted triumph in her court appearances.
7 The defendant applied to have the writ set aside, or alternatively the indorsement of the writ struck out, and the action dismissed on the ground that each of the claims alleged in the plaintiff's indorsement was statute-barred. The appellant responded with an application, amongst other things, for an order extending the time for the commencement of the action, pursuant to s 40 of the Limitation Act 2005 (WA).
8 On 5 December 2009, Le Miere J dismissed the action: Ibrahim v Wadworth [2009] WASC 317. His Honour found that, as it was commenced more than one year after the alleged publications, it was out of time under s 15 of the Limitation Act. His Honour refused the appellant's application for an extension of time to bring the action. On 2 December 2009, his Honour had refused an application by the appellant that he disqualify himself from hearing the applications on the ground of actual or apprehended bias: Ibrahim v Wadworth [No 2] [2009] WASC 356.
9 The appellant filed an appeal notice on 24 December 2009. In it, the appellant appealed against the dismissal of his application to extend time and the refusal by the primary judge to disqualify himself.
10 The appellant's case was due to be filed and served by 23 January 2010. On 16 March 2010, the respondent applied for an order for security for costs. That application was ultimately dismissed on 22 July 2010. The appellant's case had not been filed in the meantime and, on 22 July 2010, an order was made that the time within which the appellant's case was to be served be extended to 19 August 2010. The appellant's case was filed on 20 August 2010. There was then some delay involving an application by the appellant for an extension of time within which to appeal, the appeal notice being out of time.
11 On 6 April 2010, an order was made that the respondent file her answer by 27 April 2011. The respondent's answer was filed on 18 May 2011. The appeal book index was settled on 7 July 2011, and on that date an order was made that the appeal books be filed by the appellant by 28 July 2011. The appellant failed to comply with that order.
(Page 5)
12 On 9 September 2011, the matter came back before the court on a registrar's notice to the parties to attend. The appellant filed an affidavit dated 7 September 2011 in which, among other things, he said that he needed more time because he was not a solicitor, and that he had been unable to prepare the appeal books in the month of August as Ramadan occurred over that month and he was fatigued from his observance of Ramadan. (The respondent's solicitors point out, however, that in a different appeal in this court the appellant attended a directions hearing on 5 August 2011, filed an application for review of a costs order made against him on 12 August 2011, and filed the appellant's case on 19 August 2011.)
13 At the hearing on 9 September 2011, the time for the filing and service of the appeal books was extended to 7 October 2011. The appeal books were not filed and, by an application dated 12 October but filed on 18 October 2011, the appellant applied, among other things, for an extension of time to 23 October 2011 to file the appeal books. The affidavit in support offered no substantive explanation as to why the previous order had not been complied with.
14 On 24 October 2011, an order was made on the papers that unless the appellant filed and served the appeal books by 11 November 2011, the appeal stand dismissed. On the day the order was made, the appellant was informed of it by telephone and a copy was sent to him by post. The appellant did not seek a review of the order.
15 The appellant failed to file and serve the appeal books and, pursuant to the order, the appeal was dismissed.
16 On 5 December 2011, the appellant applied for an order that the time for compliance with the order of 24 October 2011 be extended. In an affidavit in support of the application, the appellant, in explanation for his failure to comply with the order of 24 October 2011, said that since about mid-September 2011 he had been involved in one hearing after another in other matters and that the amount of documents involved had proved too much for him. He also said that he had been unable to find his copy of some of the documents in the appeal book index and that he had found the task of compiling the appeal books difficult.
17 It is not suggested that the appeal books are now ready to be filed and served or that the appellant has made any substantial progress on their compilation.
(Page 6)
The disposition of the application
18 There is no doubt that the court has a wide discretion to relieve a party of the consequences of non-compliance with a self-executing, or 'springing', order, even after judgment has been entered by reason of its operation: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. But it is a discretion to be exercised cautiously.
19 It is axiomatic that orders of court are made to be obeyed. They are intended to give effect to the objectives set out in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA), namely the elimination of unnecessary delay and the just, efficient and timely determination of litigation at a cost proportionate to the value, importance and complexity of the subject-matter and the financial position of each party. Underlying those objectives is the recognition that undue delay has the potential to prejudice a fair trial and that litigation generally imposes on all those involved both great stress and anxiety and a very substantial financial burden. Order 1 r 4A and r 4B recognise too that the resources of the court are limited and that undue delay and inefficient use of the court's resources by some litigants has the potential to impair access to the court by others.
20 Non-compliance with court orders runs counter to the objectives set out in O 1 r 4A and r 4B. It invariably increases the time and cost involved in litigation, and wastes the time and resources of the court. Non-compliance should not, therefore, be too readily condoned. If a culture of non-compliance is permitted to develop, the authority and efficiency of the court will be undermined and the objectives contained in O 1 r 4A and r 4B will be thwarted.
21 Generally a springing order will be made only where (as in this case) the party in default has already failed to comply with the requirements of the rules of court and with an order of the court. Such an order is, by its nature, intended to be the last opportunity for a party to put its case in order and the proper administration of justice generally requires that it be just that, the last opportunity.
22 The exercise of the discretion to extend the time for compliance must, however, depend upon all the circumstances of the case and there must always remain sufficient flexibility to make reasonable allowance for human error or incapacity. But given the nature of a springing order, the starting point must be that it is for the defaulting party to establish why it should be permitted to continue with the litigation despite its
(Page 7)
- non-compliance. While no hard and fast rules can be laid down as to the matters to which the court should have regard on an application of this nature, in our view in the exercise of its discretion the court will normally have regard to the following matters:
(1) the circumstances in which the springing order came to be made;
(2) the reason for non-compliance with the springing order;
(3) the prejudice to the defaulting party if the time were not extended; and
(4) the prejudice to the other party if the time were extended.
23 In assessing the prejudice to the other party, it is appropriate to have regard to the strain which litigation imposes upon litigants, particularly, but by no means only, personal litigants: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [100] - [101].
24 It will also normally be a relevant consideration whether the defaulting party has a reasonably arguable case on the merits, no purpose being served by the resuscitation of a case which is devoid of merit. On the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a springing order.
25 In this case, we are not satisfied that the appellant has established grounds which would justify an extension of time. The springing order was made following two previous defaults by the appellant in complying with time limits for the filing and service of the appeal books. Those defaults followed a long delay in the filing and service of the appellant's case. The appeal books are some six months overdue and, as we have said, there is no indication that they are now ready to be filed if the time were extended.
26 No acceptable reason has been given for the failure to comply with the springing order. The explanations offered by the appellant in his affidavit of his inability to locate copies of some documents and of the difficulty he has found in carrying out the actual compilation of the appeal books, have been raised for the first time. They were not raised on the previous occasions on which he sought an extension of time. If these were significant obstacles it is surprising they did not become apparent
(Page 8)
- earlier. In any event, there is no reason to believe that they were matters which were incapable of being readily overcome.
27 The appeal book index contains a total of 24 documents, plus the transcript of the hearing before the primary judge. The 24 documents are all documents which are on the court files, having either been generated by the court (orders and the reasons for decision of the primary judge) or filed and served by either the appellant or the respondent. They are readily procurable. There is, however, no account of any endeavours by the appellant to obtain copies of the missing documents. Nor is there any detail as to the nature of the difficulties he has encountered in preparing the appeal books or what he has done to overcome them. On those matters the affidavit is silent.
28 The explanation that the appellant has been consumed by other litigation since mid-September 2011 is not elaborated upon and as it stands would seem to reflect no more than a misplaced sense of priorities. It cannot be accepted. Nor can the explanation that he has been overwhelmed by the amount of documents.
29 It is evident that over an extended period of time the preparation of the appeal books has simply not received the time and attention, or the priority, it should have received. Successive deadlines have come and gone apparently without any substantial progress having been made on the task. It is difficult to resist the conclusion that the appellant has not taken those deadlines seriously and has assumed that a further extension of time would be there for the asking.
30 We should mention that in the course of the hearing of the application, the appellant proposed that the appeal be heard without appeal books, referring to a previous appeal he had brought where that had occurred. That, however, is not a matter before us on this application and it is not relevant to the circumstances in which this appeal came to be dismissed. If it was sought to take that course, it should have been raised at a much earlier point when consideration could have been given to whether this was an appropriate case to dispense with appeal books. That was not done and orders were made for the filing of appeal books, which orders the appellant repeatedly failed to comply with. It is not to the point now that a different procedural course might have been taken.
31 The prejudice to the appellant if an extension of time is not granted is obvious. The appeal will be lost and with it any chance of pursuing the action against the respondent. However, we do not consider that is a
(Page 9)
- factor of great significance. That is because we do not consider that the appellant had any reasonable prospect of succeeding in the action.
32 There can be no doubt that the primary judge correctly found that the writ of summons was issued outside the limitation period of one year specified in the Limitation Act. It is not contended otherwise in the appellant's grounds of appeal. Nor could it be. The alleged libel was published on 6 May 2008. The writ was issued on 29 May 2009.
33 Section 40 of the Limitation Act provides that the court must extend the time within which an action for defamation may be commenced if the court is satisfied that in the circumstances it was not reasonable for the plaintiff to have commenced the action within one year of the publication of the matter complained of. However, the appellant's application for an extension of time was not supported by any evidence as to why, or the circumstances in which, the action was not commenced within one year and consequently, as the primary judge found, there was no basis for an extension. His Honour nevertheless went on to consider the grounds relied upon by the appellant for the extension. It is unnecessary to canvass those matters, but we would observe that there is nothing contained in the appellant's grounds of appeal, or his submissions in support, which suggests any error by the primary judge in concluding that none of those grounds was capable of making out a case for an extension of time.
34 The primary judge also found that, so far as the indorsement of claim might (as the appellant contended) be regarded as containing a claim that the publication of the email constituted misleading or deceptive conduct under s 10 of the Fair Trading Act 1987 (WA), it disclosed no reasonable cause of action. We consider, with respect, that his Honour was clearly correct in that conclusion. Moreover, like the primary judge, we have great difficulty in construing the indorsement as containing such a claim. For our part, we do think such a claim is to be found in the indorsement.
35 That leaves the appeal against the decision of the primary judge to refuse to disqualify himself on the ground of actual or apprehended bias. We do not think it is necessary to consider that appeal in any detail. In the circumstances, no purpose would be served by its continuation. We would simply note, however, that again there is nothing in the material before us to suggest that that appeal had any merit.
Conclusion
36 The application for an extension of time should be dismissed.
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