Investments (WA) Pty Ltd v City of Swan
[2012] WASCA 255
•3 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [2012] WASCA 255
CORAM: BUSS JA
HEARD: 3 DECEMBER 2012
DELIVERED : 3 DECEMBER 2012
FILE NO/S: CACR 185 of 2012
BETWEEN: INVESTMENTS (WA) PTY LTD
Appellant
AND
CITY OF SWAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :PRITCHARD J
Citation :INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [2012] WASC 278
File No :SJA 1059 of 2011
Catchwords:
Appeal - Failure by the appellant to file the appellant's case within the time required by the rules of court - Appellant's case filed belatedly - Order as to costs
Legislation:
Nil
Result:
Costs order made
Category: B
Representation:
Counsel:
Appellant: Mr S K Shepherd
Respondent: Mr D W McLeod
Solicitors:
Appellant: Tottle Partners
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Investments (WA) Pty Ltd v City of Swan [2012] WASC 278
BUSS JA: By a notice to attend dated 13 November 2012, the Acting Court of Appeal Registrar has listed this appeal before the court today to consider the appellant's failure to file the appellant's case.
On 23 May 2011, the appellant was convicted in the Magistrates Court of an offence against s 218(c) of the Planning and Development Act 2005 (WA). The magistrate entered a conviction, sentenced the appellant, and made orders for costs. The appellant then appealed against the magistrate's decision, other than in respect of the penalty imposed and costs.
The appeal was heard by Pritchard J. Her Honour held that although the magistrate had erred in refusing to consider submissions made on behalf of the appellant in respect of an alleged defence under s 22 of the Criminal Code (WA), no miscarriage of justice occurred as a result of that error and, in the circumstances, the appeal should be dismissed pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA). See Investments (WA) Pty Ltd v City of Swan [2012] WASC 278.
On 24 August 2012, the appellant filed an appeal notice. It sought leave to appeal to this court against the primary judge's (Pritchard J's) decision. On 3 September 2012, the respondent filed a notice of intention.
By r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appellant was obliged to file the appellant's case by 15 October 2012. It was not filed by the due date. It has now been filed, but was not filed until the afternoon of 30 November 2012.
At all material times the appellant has been represented by solicitors. I am satisfied that there is no reasonable excuse for the appellant's disregard of the rules and its belated filing of the appellant's case.
It is appropriate, in the circumstances, that an order as to costs be made against the appellant in relation to today's hearing. Accordingly, I will order that the appellant is to pay the respondent's costs of the hearing today in any event.
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