MAZHARI v ARTMODE Holdings Pty Ltd

[2008] WASCA 204

MAZHARI -v- ARTMODE HOLDINGS PTY LTD [2008] WASCA 204

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 204
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:54/2008	Heard:	28 AUGUST 2008
Coram:	PULLIN JA MURRAY AJA	Delivered:	28/08/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	SHAMS AZAR MAZHARI ARTMODE HOLDINGS PTY LTD
Catchwords:	Application for an extension of time in which to appeal No sufficient explanation for delay No prospect of success Turns on own facts
Legislation:	Nil
Case References:	Gallo v Dawson (1990) 64 ALJR 458 Girando v Girando (1997) 18 WAR 450

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAZHARI -v- ARTMODE HOLDINGS PTY LTD [2008] WASCA 204 CORAM : PULLIN JA

MURRAY AJA

HEARD : 28 AUGUST 2008 DELIVERED : 28 AUGUST 2008 FILE NO/S : CACV 54 of 2008 BETWEEN : SHAMS AZAR MAZHARI

Appellant

AND

ARTMODE HOLDINGS PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER ELLIS

File No : CIV 763 of 2003

Catchwords:

Application for an extension of time in which to appeal - No sufficient explanation for delay - No prospect of success - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : Mr T R D Mason

Solicitors:

Appellant : In person
Respondent : Jackson McDonald

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

Gallo v Dawson (1990) 64 ALJR 458
Girando v Girando (1997) 18 WAR 450


(Page 3)

1 PULLIN JA: This is an application for an extension of time in which to appeal. The appellant claims to have suffered personal injury in 2000 and sued the respondent in the District Court. The writ issued in 2003.

2 The proceedings in the District Court were characterised by many adjournments of steps in the proceedings, often by reasons offered by the appellant or because of non-appearance of the appellant. The appellant self-represented initially, then retained legal counsel, who then sought to be removed from the record during the proceedings .

3 On 7 March 2007 Commissioner Ellis adjourned the trial because the appellant's son had allegedly died. I use the word 'allegedly', advisedly, because other information provided to this Court suggests that the son in fact died in July 2007.

4 An order for further and better discovery was made against the appellant in the District Court on 1 November 2006. The appellant did not comply with that order and a springing order was made on 26 June 2007 that such discovery be given, with a provision that in default the proceedings would be dismissed.

5 Ultimately, that springing order was not complied with and judgment was entered on 18 July 2007. Nearly 11 months later, on 5 June 2008, an appeal notice was filed in this Court and the appellant applied for an extension of time.

6 The matter was brought on before me on an earlier occasion to point out to the appellant this discrepancy about the information which had been provided first to the District Court and then to this Court about the death of her son. That discrepancy has not been explained by any material provided to the Court.

7 On that occasion when I brought the matter on, Mr Hollett appeared as counsel for Mrs Mazhari and indicated that he was only there to appear on that application but would not be appearing subsequently. The matter was then adjourned to this date to hear the application.

8 The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. That discretion can only be exercised upon proof that strict compliance will work an injustice upon the appellant. That requires regard to be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or refusal of the application for an extension of time; see Gallo v Dawson (1990) 64 ALJR 458.

(Page 4)

9 The length and reasons for the delay must be addressed by the appellant and the cogency of the explanation required increases as the length of the extension sought increases; see Girando v Girando (1997) 18 WAR 450, 454.

10 While the appellant has provided some explanation for inaction in part of 2007 in an affidavit sworn by Mr Hollett dated 26 June 2008, she has not sufficiently explained the gross delay in lodging her notice of appeal which, as I have indicated, amounts to some 11 months.

11 Although the respondent has not adduced evidence of specific prejudice the appellant's cause of action arose eight years ago and since liability and quantum were both in issue, that delay would raise an inference of prejudice in terms of witnesses' memories.

12 Neither the appeal notice, the appellant's affidavit, Mr Hallett's affidavit, nor any other material filed by the appellant state what the proposed grounds of appeal might be.

13 It is not said there has been any procedural irregularity or that the springing order made by Commissioner Ellis in June 2007, pursuant to which judgment was entered in July 2007, demonstrated any error of fact or law or any failure as regards the exercise of his discretion.

14 Indeed, based on the history of the proceedings and the conduct of the appellant deposed to in the affidavit of Lauren Kate Cook sworn 25 May 2007, which is an attachment to Mr Hollett's affidavit filed in these proceedings, it was entirely appropriate for the springing order to be made.

15 As a result of all those considerations, because of the length of time that elapsed before the appeal notice was lodged, the lack of cogency of the explanation for the delay, the lack of any disclosed grounds of appeal and therefore the lack of any prospects of the appeal succeeding and the history of the proceedings, the application for an extension of time should be refused and the appeal dismissed.

16 MURRAY AJA: I agree that those orders should be made for the reasons given by the presiding judge, to which I have nothing to add.