LAURENT v Commissioner of Police

[2010] WASCA 140

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAURENT -v- COMMISSIONER OF POLICE [2010] WASCA 140

CORAM:   NEWNES JA

HEARD:   22 JULY 2010

DELIVERED          :   22 JULY 2010

FILE NO/S:   CACV 10 of 2010

BETWEEN:   GERALD JEAN-NOEL LAURENT

Appellant

AND

COMMISSIONER OF POLICE
First Respondent

PAUL KOSOVICH
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :JUDGE J PRITCHARD (DEPUTY PRESIDENT)

Citation  :LAURENT and COMMISSIONER OF POLICE [2009] WASAT 254

File No  :EOA 73 of 2007

Catchwords:

Practice and procedure - Application for third extension of time to file appellant's case - Delay of more than four months beyond time specified in r 32 - Affidavit evidence of reason for delay unsatisfactory - Springing order made

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(2)

Result:

Springing order made

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Ms R Young

Second Respondent      :     Ms R Young

Solicitors:

Appellant:     In person

First Respondent           :     State Solicitor's Office

Second Respondent      :     State Solicitor's Office

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

Nil

1. NEWNES JA:  This appeal has been listed to consider the appellant's application of 11 June 2010 for a further extension of time to file and serve the appellant's case.  The relevant history of the matter is as follows.

2. On 23 December 2009, the State Administrative Tribunal dismissed the appellant's claim of discrimination under the Equal Opportunity Act 1984 (WA) on the ground that the claim was misconceived or lacking in substance. On 8 February 2010, the appellant lodged an appeal notice seeking leave to appeal against that decision.

3. Pursuant to r 32(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appellant was required to file and serve the appellant's case on or before 15 March 2010. It was not filed and, on 26 March 2010, the appellant was granted an extension of time to 30 April 2010 to file and serve it.

4. On 30 April 2010, the appellant filed an application seeking a further extension of time.  An affidavit of the appellant in support of that application was filed on 7 May 2010.  In the affidavit, the appellant said, in effect, that he was still suffering from a back injury sustained on 21 February 2004 and that his resulting inability to sit for prolonged periods had meant that he had been unable to prepare the appellant's case.  The appellant did not indicate either in the application or in the affidavit how much further time he sought.  On 21 May 2010, an order was made extending the time for the filing and service of the appellant's case to 11 June 2010.

5. Once again, the appellant did not comply with the order.  Instead, on 11 June 2010 he filed an application seeking a further extension of time.  On 14 June 2010, the appellant filed an affidavit, which he had sworn that day, in support of the application.  In the affidavit, the appellant said that he had 'attempted to compile the bundle of documents and suffered injury whilst doing so'.  He said he had sought medical treatment and medication to prevent further injury.  Later in the affidavit the appellant identified the injury as being an aggravation of his back injury, which he said had occurred as a result of 'compiling my case'.  The appellant said, however, that he had prepared the majority of the submissions on which he intended to rely in the appeal but was prevented from attempting to complete the submissions for a few days.  The appellant annexed to the affidavit a standard form medical certificate, dated 12 June 2010, in which it is simply certified that the appellant is 'unfit for work' from 12 June to 14 June 2010.

6. On 6 July 2010, notice was issued to the appellant informing him that the application for an extension of time had been listed at 2.15 pm on 22 July 2010.

7. The appellant's case is now more than four months out of time.  That is by any measure a lengthy delay.  While the appellant maintains that his back injury has prevented him from completing the appellant's case, he has not put before the court any medical evidence which is capable of supporting that contention.  The appellant attached to his affidavit of 7 May 2010 several letters from doctors relating to his back condition but the latest of those was dated 14 July 2009 and none of them provides any support for his current contention.  The medical certificate of 12 June 2010, relating to two days of incapacity 'for work' after the appellant's case was due to be filed and served, obviously does not.

8. It is accepted that some indulgence in relation to time limits may be necessary where an unrepresented appellant is grappling with the preparation of unfamiliar legal documents.  But in this case the appellant has already been extended considerable indulgence and the issue of the filing and service of the appellant's case must now be brought to an end.  The appeal cannot continue to remain becalmed.  If for any reason the appellant is unable to carry out the task himself in a timely way he will have to gather whatever additional resources he may need to ensure that it is done.

9. The order will therefore be that unless, on or before 12 August 2010, the appellant do file and serve the appellant's case, the appeal be dismissed and the appellant pay the respondents' costs of the appeal to be taxed.