Kalsbeek v The Commonwealth of Australia [No 2]

[2021] WASCA 173

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   KALSBEEK -v- THE COMMONWEALTH OF AUSTRALIA [No 2] [2021] WASCA 173

CORAM:   MURPHY JA

MITCHELL JA

HEARD:   24 SEPTEMBER 2021

DELIVERED          :   24 SEPTEMBER 2021

PUBLISHED           :   24 SEPTEMBER 2021

FILE NO/S:   CACV 34 of 2021

BETWEEN:   ROBERT KALSBEEK

Appellant

AND

THE COMMONWEALTH OF AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SHARP DCJ

Citation: KALSBEEK -v- COMMONWEALTH OF AUSTRALIA [2021] WADC 34

File Number            :   CIV 3841 of 2017

Catchwords:

Appeal - Practice and procedure - Where appeal dismissed for failure to comply with a springing order - Whether an extension of time to comply with springing order should be granted

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	J L W Henderson

Solicitors:

Appellant	:	In person
Respondent	:	Minter Ellison

Case(s) referred to in decision(s):

A v C [No 2] [2015] WASCA 199

Kalsbeek v The Commonwealth of Australia [2021] WASCA 142

REASONS OF THE COURT:

1. On 24 September 2021, we heard the appellant's application for an extension of time for compliance with a springing order for the filing of the appellant's case in the appeal. 

2. The background to the application is set out in this court's decision in Kalsbeek v The Commonwealth of Australia [2021] WASCA 142. The effect of the orders made on 11 August 2021 following that decision was to provide for the appeal to be dismissed if the appellant did not file and serve an appellant's case that complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) by 4.00 pm on 1 September 2021. The court explained that this was to give the appellant a 'further, final, time to file an appellant's case in accordance with the Court of Appeal Rules'.

3. On 1 September 2021, the appellant attempted to comply with the order by filing an appellant's case but the registrar did not accept the documents on the ground that they did not comply with the Rules.  On 2 September 2021, the registrar issued a certificate of conclusion of civil appeal indicating that the appeal had been dismissed.  By application in an appeal filed on 16 September 2021, the appellant applied for an extension of time to comply with the springing order.

4. The principles governing the determination of an application to extend time for compliance with a springing order were summarised by this court in A v C [No 2] [2015] WASCA 199 [2] - [4].

5. The appellant has not produced a minute of an appellant's case which complies with the Rules.  The documents which the appellant sought to file on 1 September 2021 were not in fundamental respects an improvement on the documents the subject of the court's earlier decision, particularly in relation to deficiencies of the kind referred to and illustrated in [44] - [45] and [55] ‑ [62] of the court's previous decision.  The history of the matter provides no reason to think that the appellant has the capacity to file a compliant appellant's case within a reasonable time if a further extension were to be granted.  Having regard to the opportunities already provided to the appellant, and the absence of any ground of appeal in the documents which the appellant attempted to file which appears to identify an arguable case, it is not in the interests of justice to grant a further extension of time.

6. Therefore, at the conclusion of the hearing we ordered that:

   (1)The appellant's application in an appeal filed on 16 September 2021 is dismissed. 

   (2)The appeal remains dismissed, and the appellant remains liable to pay the respondent's costs of the appeal, pursuant to the orders made by the court on 11 August 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JB

Associate to the Honourable Justice Mitchell

24 SEPTEMBER 2021