May v The State of Western Australia - [2016] WASCA 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 35

CORAM: NEWNES JA
MURPHY JA

HEARD: 3 FEBRUARY 2016

DELIVERED : 3 FEBRUARY 2016

PUBLISHED : 19 FEBRUARY 2016

FILE NO/S: CACV 40 of 2015

BETWEEN: MARIANA ELIZABETH MAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MITCHELL J
Citation  :MAY -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 24
File No  :CIV 1080 of 2015

Catchwords:

Practice and procedure - Failure to comply with springing order - Appeal dismissed by operation of springing order - Application to extend time for compliance - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     Ms C J Thatcher
First Non-party - The Royal Society for the
Prevention of Cruelty to Animals
(Western Australia) Inc  :        Mr E W L Greaves
Second Non-party - David Van Ooran     :        Mr E W L Greaves
Third Non-party - Amanda Ann Swift     :        Mr E W L Greaves

Solicitors:

Appellant:     In person
Respondent:     State Solicitor for Western Australia
First Non-party   :        Squire Patton Boggs
Second Non-party   :        Squire Patton Boggs
Third Non-party              :        Squire Patton Boggs

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

A v C [No 2] [2015] WASCA 199
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Frigger v Clavey Legal Pty Ltd [2015] WASCA 217
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
TP Engineering Pty Ltd v JM [2015] WASCA 181

JUDGMENT OF THE COURT: On 3 February 2016, three matters came before the court. They were:
(1)An application by the appellant, dated 10 December 2015, seeking an extension of time to file and serve the appellant's case;
(2)An application by the appellant, dated 16 June 2015, for leave to rely on additional evidence on the appeal;
(3)An application by the appellant, dated 12 March 2015, for certain injunctive relief.
We dismissed all of the applications and said we would provide reasons for our decision later. These are the reasons.

Background

In December 2012, 138 animals were seized by officers of the Royal Society for the Prevention of Cruelty to Animals (Western Australia) Inc (RSPCA) from properties belonging to the appellant. Subsequently Ms Swift, a general inspector pursuant to the Animal Welfare Act 2002 (WA) (the Act) and chief inspector of the RSPCA, commenced proceedings in the Magistrates Court against the appellant seeking an order under the Act for forfeiture of the seized animals.
On or about 16 January 2015, the appellant sought to file an originating summons in the General Division of this court. The originating summons was rejected by a registrar on the ground that it appeared to be an abuse of process or a frivolous or vexatious proceeding: Rules of the Supreme Court 1971 (WA), O 67 r 5(1).
On 21 January 2015, the appellant filed a notice of originating motion seeking, in effect, the following substantive relief:
(1)An order that the appellant have leave to file the originating summons;
(2)An injunction restraining the State of Western Australia, the Minister for Agriculture and Food, Ms Swift and Mr Van Ooran (the chief executive officer of the RSPCA) from killing any of the seized cats or rabbits;
(3)An injunction restraining the same parties from 'executing any of the conditions' of a deed entered into between the appellant and Ms Swift and the RSPCA on or about 10 November 2014.
The named respondent was the State of Western Australia. The primary judge gave Ms Swift leave to be heard. On 22 January 2015, his Honour dismissed the notice of originating motion.
The proceeding in the Magistrates Court for forfeiture of the animals came before Magistrate Hawkins the following week, on 27 January 2015. The appellant was represented by counsel but also attended the hearing. A memorandum of consent orders for the forfeiture of the animals to the Crown was handed to the magistrate and, after a short adjournment, the appellant's counsel told the magistrate that orders could be made in terms of the memorandum. The orders were then made by consent.
Later that day, the animals were disposed of pursuant to reg 12(2) of the Animal Welfare (General) Regulations 2003 (WA) by vesting them in the RSPCA.

The application for an extension of time to file the appellant's case

The appellant sought to appeal from the decision of the primary judge. An appeal notice was filed by the appellant on 27 February 2015. It was therefore out of time and the appellant required leave to commence the appeal.
The appellant's case was due to be filed on or before 3 April 2015. On 23 April 2015, the appellant was granted an extension of time to 29 April 2015 to file and serve the appellant's case. It was not filed and on 5 May 2015 the appellant filed an application for a further extension of '2 to 3 weeks'. The appellant was granted an extension to 26 May 2015. Again, the appellant failed to comply with that time limit. Instead, on 26 May 2015, the appellant made an application for a further extension of time. The time was again extended, this time to 16 June 2015. Once again, the appellant failed to comply with that time limit.
On 20 July 2015, the appellant applied for 'one last extension of time' to file and serve the appellant's case, saying that one to two weeks would be sufficient.
On 24 July 2015, the court ordered, relevantly, that unless, on or before 14 August 2015, the appellant filed and served an appellant's case in accordance with rule 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal rules), the appeal would stand dismissed and the appellant was to pay the costs of the respondent and of the RSPCA (which had been given leave to be heard) to be taxed.
The appellant failed to file and serve an appellant's case and accordingly the appeal now stands dismissed. The current application seeks, in effect, to extend the time for compliance with the order of 24 July 2015 and thereby to reinstate the appeal.

The disposition of the application

There is no doubt the court has a discretion to grant an extension of time notwithstanding that the appeal has been dismissed as a result of the springing order: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. The question is whether that discretion should be exercised in the particular circumstances of this case.
We would not extend the time. It has been pointed out time and again that a springing order is intended to be the last opportunity afforded to a party to put their case in order and that the proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, the last opportunity: see, for instance, MTQ Holdings Pty Ltd v Lynch[2007] WASC 49 [38] ‑ [57] and the cases there cited; A v C [No 2] [2015] WASCA 199 [2] ‑ [4]; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53]; Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 [51].
It is now some 11 months since the notice of appeal was filed. The Court of Appeal rules required the appellant's case to be filed by 3 April 2015. The appellant was granted three extensions of time, none of which was complied with, before the springing order was made on 24 July 2015. Not only did the appellant not meet the time limit in that order, but she waited until 10 December 2015 before she sought an extension of time for compliance.
In light of the history of the matter and the magnitude of the delay, it would require a very compelling case for a further extension of time to be granted. The explanation contained in the appellant's affidavit in support of the application falls a very long way short of that. In that affidavit, the appellant says, relevantly:
My health has stopped me from lodging [an appellant's case] sooner. I humbly apologise to all concerned … I am now walking 1 – 2 K daily and I now feel confident that I will be able to lodge my appellant's case without any major blockages.
It hardly needs to be said that that explanation is wholly inadequate. Not only is there no medical evidence as to the nature and effect of the alleged health problems but the appellant herself does not condescend to describe how they have prevented her from filing an appellant's case. There is also no indication as to when the appellant expects to be in a position file an appellant's case, beyond a woolly expression of confidence that it will occur 'without any major blockages'. Whether a start has been made on its preparation is not mentioned.
We do not underestimate the difficulties faced by the appellant in conducting the appeal in person but, making all due allowances for that, the appellant has been given every reasonable indulgence and it would not be in the interests of justice to allow any further indulgence. The appeal was dismissed by operation of the order of 24 July 2015 and that position should not be disturbed.
We are fortified in that view by what appears to be the absence of any merit in the appeal. There were, in effect, three substantive issues before the primary judge. The first was whether the registrar erred in rejecting the originating summons the appellant sought to file on the ground that it appeared to be an abuse of process or a frivolous or vexatious proceeding; the second was whether the appellant was entitled to an injunction restraining the respondent or officers of the RSPCA from disposing of any of the animals; and the third was whether a deed setting out a process for resolving proceedings between the parties, including the appellant's agreement to forfeit the animals, was valid and enforceable.
As to the first, the primary judge noted that the originating summons proposed action against the State and the Minister for Agriculture and Food without any evident legal basis; it contained a number of the allegations that did not appear to have any basis in law or fact; and it contained a number of scandalous allegations without an evidential basis. His Honour concluded that the proceedings were doomed to fail. He considered there was no purpose in giving the appellant leave to amend the document as it was open to the appellant to file fresh originating process so long as it asserted a reasonably arguable cause of action. In relation to the second, his Honour found there was no evidence to support the appellant's contention that the animals were to be killed the following day and noted that he had been informed by Ms Swift's counsel that the animals would continue to be held until a forfeiture order was obtained in the Magistrates Court proceedings. As to the third, his Honour found that the deed was valid and enforceable. His Honour declined to restrain Ms Swift from seeking a forfeiture order in the Magistrates Court proceedings.
On the material before us, we cannot discern any error by the primary judge. Having examined the originating summons, it seems to us that his Honour was correct in concluding that it appeared to be an abuse of process or a frivolous or vexatious proceeding. We note in passing that the appellant did not take the course of filing fresh proceedings.
As to the second issue, not only can we discern no error by the primary judge but that issue has effectively been overtaken by the order made in the Magistrates Court on 27 January 2015, with the appellant's consent, for the forfeiture of the animals. As we have said, the animals were then disposed of to the RSPCA. We should mention that, on 24 July 2015, counsel for the RSPCA informed the court that only two rabbits and one lorikeet remained with the RSPCA, the other animals having died of natural causes, been 'rehomed' or euthanised, and that the lorikeet had been rehomed subject to the person taking it acquiring the necessary licence (ts 21). We are not aware of the current position but certainly no more than 3 of the original 138 animals are still in the custody of the RSPCA.
His Honour's decision that the deed was valid and enforceable also appears to be clearly correct and, in any event, that issue too has been superseded by the orders subsequently made in the Magistrates Court.

Conclusion

It was for those reasons we dismissed the application for an extension of time. It was therefore unnecessary to consider the other applications, but to avoid any misunderstanding orders were made dismissing them, and an undertaking given by the RSPCA on 24 July 2015 not to dispose of the remaining animals was discharged.