Ledger v Cleveland Nominees Pty Ltd
[2000] WASCA 379
•21 NOVEMBER 2000
LEDGER -v- CLEVELAND NOMINEES PTY LTD [2000] WASCA 379
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 379 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:106/2000 | 21 NOVEMBER 2000 | |
| Coram: | MALCOLM CJ OWEN J STEYTLER J | 21/11/00 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Extension of time granted | ||
| PDF Version |
| Parties: | KIM FRANCIS LEDGER CLEVELAND NOMINEES PTY LTD |
Catchwords: | Appeal Want of prosecution Appellant misinformed by solicitor about preparation of appeal No step taken beyond filing notice of appeal Appellant frequently inquiring about progress and receiving assurances from solicitor Appellant not at fault Extension of time to enter appeal for hearing sought |
Legislation: | Nil |
Case References: | Nil Christie v Harvey (1900) 2 WALR 146 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LEDGER -v- CLEVELAND NOMINEES PTY LTD [2000] WASCA 379 CORAM : MALCOLM CJ
- OWEN J
STEYTLER J
- Appellant (Defendant)
AND
CLEVELAND NOMINEES PTY LTD
Respondent (Plaintiff)
Catchwords:
Appeal - Want of prosecution - Appellant misinformed by solicitor about preparation of appeal - No step taken beyond filing notice of appeal - Appellant frequently inquiring about progress and receiving assurances from solicitor - Appellant not at fault - Extension of time to enter appeal for hearing sought
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Extension of time granted
Representation:
Counsel:
Appellant (Defendant) : Mr P I Jooste QC
Respondent (Plaintiff) : Mr G D Cobby
Solicitors:
Appellant (Defendant) : Mony de Kerloy
Respondent (Plaintiff) : Tottle Christensen
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Christie v Harvey (1900) 2 WALR 146
(Page 3)
1 MALCOLM CJ: The Court is unanimously of the opinion that, having regard to the particular circumstances whereby the appellant was misled by the former solicitors into believing that an appeal was on foot and was being addressed, the respondent's motion that the appeal be dismissed for want of prosecution should be dismissed. As the appellant, Mr Ledger, says in his affidavit, shortly after the decision on 31 May 2000, having previously discussed the possibility of an appeal after the conclusion of the trial on 18 April 2000 with his counsel, the appellant telephoned his solicitor and instructed him that he wished to appeal against the decision.
2 The notice of appeal was filed on 20 June 2000 but not served until 23 June, which was out of time. Nonetheless on 27 June the solicitors for the respondent filed notice of intention to appear. No substantive point is now taken about that matter. According to Mr Ledger his solicitor did not explain to him the procedures for conducting an appeal to the Full Court. No explanation was given about the need to obtain transcripts, or arrange an appointment before a Registrar of the Court to determine what papers should be included in the appeal book. Mr Ledger says in his affidavit that from time to time, at least once every second week, he would telephone his solicitor to ask him how the appeal was progressing. The response was by the solicitor saying words to the following effect:
"Everything is under control and I cannot do anything more. It is just a matter of taking its course and just waiting on a date for the hearing of the appeal, which will be in approximately December 2000."
3 In addition, there were discussions between Mr Ledger and his solicitor regarding representation on the hearing of the appeal and the arguments that would be presented. Mr Ledger instructed his solicitor that he wished to retain Queen's Counsel to represent him on the appeal and the names of various persons were discussed. He was told that his solicitor would consider an appropriate Queen's Counsel and would inform him in due course but nothing transpired, although between 20 June 2000 and 8 November 2000 Mr Ledger was consistently chasing up his solicitor about the progress and process of the appeal.
4 What then transpired was that on 17 October 2000 Mr Ledger was served with a bankruptcy notice by the respondent based upon his failure to make payment of the amount which had been adjudged to be due under the judgment of the District Court. There were subsequently proceedings to set aside the bankruptcy notice. On or about 8 November 2000 Mr Ledger informed his solicitor that the appeal would have to be
(Page 4)
- undertaken by other solicitors and there was a change of solicitors. Mr Ledger instructed his present solicitors on 10 November 2000.
5 It then appeared that nothing had been done to progress the appeal and it is against that background that the motion to dismiss the appeal for want of prosecution has been brought. I would have to say that from the standpoint of the solicitors for the respondent the motion was quite properly brought. However, so far as the appellant is concerned it appears that he had done everything that he as a litigant would be required to do to progress the appeal and had been in regular touch with his solicitor to inquire about progress. Regrettably, he was misinformed.
6 In all the circumstances the interests of justice would not be served by acceding to the motion to dismiss the appeal for want of prosecution. There is no evidence of any particular prejudice to the respondent to the appeal. The case concerns an action for specific performance of a contract for the sale of goods, the respondent being the vendor of a special Porsche racing car vehicle that is currently not serviceable, but requires a great deal of work to be done on it to be put into service.
7 In the absence of any evidence of any particular prejudice so far as the respondent is concerned, I am of the opinion that the appellant's application for an extension of time within which to enter the appeal should be granted. That should be on the following terms: first, that the appellant pay the respondent's costs of these proceedings today in any event; and second, that within the next 10 days the appellant should file and serve the draft appeal book index, arrange a hearing date before a Registrar to settle the appeal book index, and ascertain whether a transcript of the evidence of the trial has been obtained, and if not to obtain the same. Thereafter the appeal books should be prepared and the appeal entered for hearing on or before 15 January 2001.
8 I would also direct that by that date any necessary or appropriate applications for a stay of execution of the judgment of the District Court, for leave to amend or vary the grounds of appeal, or adduce any further evidence should be filed and served and appointment dates obtained for the hearing of any such application.
9 OWEN J: I agree.
10 STEYTLER J: I also agree.
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