Investments (WA) Pty Ltd v City of Swan

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.

CaseChat Overview and Summary

The appellant, Investments (WA) Pty Ltd, sought to appeal against a decision of the Magistrates Court of Western Australia. The respondent, City of Swan, had previously obtained a judgment against the appellant in a proceeding relating to a dispute over property development and compliance with local planning regulations. The appellant contended that the decision was flawed on several grounds, including the interpretation of planning laws and the assessment of penalties. The appeal was heard by the Supreme Court of Western Australia, which had jurisdiction to review the decision of the lower court.

The court was required to determine whether the appeal could proceed given that the appellant had failed to file its case within the time required by the rules of court. The appellant had filed its case several days late, and the respondent argued that the appeal should be dismissed on this basis. The court also had to consider whether the failure to file on time was a minor procedural irregularity or a substantial breach that warranted dismissal of the appeal. Additionally, the court had to address the substantive issues raised by the appellant regarding the merits of the original decision.

The court found that the appellant's failure to file its case within the prescribed time constituted a substantial breach of the rules of court. Despite the appellant's argument that the delay was due to an administrative oversight, the court held that such delays could not be excused lightly, as strict compliance with court rules is necessary to maintain the integrity of the judicial process. The court further held that the late filing prejudiced the respondent, who had prepared for the hearing based on the assumption that the case would be filed on time. Consequently, the appeal was dismissed. The court also ordered the appellant to pay the respondent's costs of the appeal, reflecting the appellant's failure to comply with the procedural requirements.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established