Kounis v Westpac Banking Corporation

[2023] WASCA 184

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   KOUNIS -v- WESTPAC BANKING CORPORATION [2023] WASCA 184

CORAM:   VAUGHAN JA

VANDONGEN JA

LUNDBERG J

HEARD:   12 DECEMBER 2023

DELIVERED          :   12 DECEMBER 2023

FILE NO/S:   CACV 96 of 2022

BETWEEN:   AINSLIE IRENE KOUNIS

Appellant

AND

WESTPAC BANKING CORPORATION

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   SANDERSON M

File Number            :   CIV 1600 of 2021

Catchwords:

Appeals - Practice and procedure - Adjournment of appeal hearing - Turns on own facts

Legislation:

Nil

Result:

Oral application to adjourn appeal hearing and for leave to file amended grounds of appeal refused

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	P Honey

Solicitors:

Appellant	:	In person
Respondent	:	MinterEllison

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

Nil

JUDGMENT OF THE COURT:

(These reasons were delivered orally after hearing the parties' submissions.  They have been edited to correct matters of grammar and infelicity of expression.)

1. This is an appeal against an order for possession entered by way of summary judgment by Master Sanderson on 8 September 2022 against the appellant in favour of the respondent bank.

2. The appellant makes an oral application seeking orders that: (1) the appeal hearing be adjourned; and (2) she have leave to file amended grounds of appeal.  The appellant is yet to formulate any amended grounds of appeal.  The appellant says that she requires until 5 February 2024 to do so.  Thereafter it would be necessary for the respondent to file and serve an amended respondent's answer.  Accordingly, if the adjournment application was to be granted, it would be likely that the appeal will not come on for hearing and determination before the May/June 2024 lists.  In other words the practical result of any adjournment will be that the resolution of the appeal will be deferred for at least four and a half months.

3. In terms of timetable to this point the following should be noted:

   1.The appeal was filed out of time on 7 October 2022.

   2.An appellant's case was due on 11 November 2022.  The appellant did not comply with that requirement.  Initially the court extended the time for the appellant's case until 6 December 2022.  The time for the appellant's case was then further extended to 22 December 2022.  Accordingly, immediately after the filing of the appeal notice the appellant was provided with additional time to prepare her appellant's case including her grounds of appeal.

   3.On 5 July 2023 the appellant was informed that the appeal had been listed for hearing on 5 October 2023.

   4.For reasons beyond her control - the then recent passing of her partner - the appellant was not in a position to proceed with the appeal hearing on 5 October 2023.  The appellant sought and obtained an adjournment of the appeal hearing.  That adjournment was unopposed.  At the time the appellant sought an adjournment for a minimum of at least six weeks.  As it happened the appellant was provided with an adjournment of almost 10 weeks.  On 3 October 2023 the appeal hearing was re‑listed for today.

4. The appellant seeks the adjournment today on the basis that she is still experiencing trauma and grief with respect to the loss of her partner.  The appellant says that she is experiencing mental health stress due to the requirement of having to finalise her partner's estate.  The appellant also says that it has come to her attention that the grounds of appeal require amendment.  Finally, the appellant says that she has not been provided with the reasons of the primary court.  However, that is incorrect.  The primary court's reasons were transcribed.  That transcript is reproduced in the Blue Appeal Book.  The appellant has confirmed that she has the appeal books.

5. The court decides whether or not it should adjourn an appeal hearing by evaluating the interests of justice in the particular case informed by the goal and objects enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

6. It is not in the interests of justice to grant the appellant an adjournment of the appeal hearing.  The following matters militate against the adjournment:

   1.This is not a case where the appellant has acted in a timely way to this point.  The appellant filed the appeal out of time.  The appellant then required two extensions of time to file and serve her appellant's case.

   2.The previous adjournment in October 2023 is a neutral factor.  However, it is relevant that the appellant was afforded an adjournment greater than the six weeks that she then sought.  The appellant has, in that sense, already been provided with an additional opportunity to adequately prepare her appeal.  She has also known since 3 October 2023 that today is the day for the hearing of the appeal.

   3.There is no medical evidence to suggest that the appellant is suffering from some illness or condition that might prevent her adequately preparing and presenting her case on appeal.

   4.The belated suggestion that the appellant wishes to amend her grounds is inconsistent with what was stated by the appellant in her appellant's case.  There, on 22 December 2022, the appellant certified that, other than the preparation of the appeal books, she was 'almost ready' for the hearing of the appeal.  And, as mentioned, the appellant was afforded extra time to prepare her appellant's case.

   5.The adjournment of the appeal hearing will be to the prejudice of the respondent.  The respondent has a legitimate interest in the appeal being determined as soon as practicable.  In any event an additional delay of four and a half months is contrary to the goal of eliminating delay beyond that reasonably required for the preparation and just determination of the appeal.

   6.It is also in the public interest that the appeal be heard forthwith now that the members of the coram have prepared for the appeal hearing.  The time of the court is a publicly funded resource.  Inefficiencies in the use of that resource arising from the adjournment of appeal hearings are to the detriment of other litigants and militate against the favourable exercise of the discretion to adjourn.

7. It is necessary, in the interests of justice, that the appellant have sufficient opportunity to prepare and present her appeal for hearing.  It cannot be said that such an opportunity has not been accorded to the appellant.  The appeal has been on-foot since 7 October 2022 and, on 5 July 2023, was initially listed for a hearing in October 2023.  The appellant has known since 3 October 2023 that the appeal hearing had been re-scheduled for today.  There has been more than an adequate opportunity for the appellant to prepare her appeal for presentation at the hearing.

8. The appellant's oral application to adjourn the appeal hearing and for leave to file amended grounds of appeal is refused.

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

EM

Associate to the Honourable Justice Vaughan

12 DECEMBER 2023