IBRAHIM -v- WADWORTH [2012] WASCA 47

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 47
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:159/2009	Heard:	24 JANUARY 2012
Coram:	PULLIN JA NEWNES JA	Delivered:	7/03/12
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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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

HEARD : 24 JANUARY 2012 DELIVERED : 7 MARCH 2012 FILE NO/S : CACV 159 of 2009 BETWEEN : TAREK IBRAHIM

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…

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 Ibrahim v Wadworth

Details

AGLC: Ibrahim v Wadworth [2012] WASCA 47
Case: [2012] WASCA 47
Decision Date: 7 MARCH 2012

CaseChat Overview and Summary

In the case of Ibrahim v Wadworth, the appellant sought to appeal a decision made by the court. The appeal arose from the appellant's failure to comply with a self-executing order, also known as a 'springing' order. This type of order becomes effective upon the occurrence of a specified event, in this case, the failure of the appellant to adhere to the terms set forth. The matter was heard in the court of appeal.

The legal issues before the court involved the appellant's non-compliance with the self-executing order and the subsequent application to extend the time to comply with the order. The court needed to determine the principles to be applied when considering such an application. Additionally, the court had to assess whether there were reasonable prospects of the appellant succeeding on appeal, as well as whether there was a satisfactory explanation for the appellant's non-compliance with the order.

The court found that the appellant had failed to provide a satisfactory explanation for their non-compliance with the self-executing order. Furthermore, the court concluded that there were no reasonable prospects of the appellant succeeding on appeal. Consequently, the court dismissed the appeal and the application to extend time to comply with the order. The court's decision was final, with no further orders made beyond dismissing the application.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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