METAXAS & VERNON (A FIRM) -v- WILLIAMSON & ORS [2003] WASCA 328
| Link to Appeal : |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 328 | |
| Case No: | FUL:143/2002 | 16 APRIL 2003 | |
| Coram: | MASTER NEWNES | 16/04/03 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | METAXAS & VERNON (A FIRM) IAN EDWARD WILLIAMSON YOGANATHAN SOOBIAH NAIDOO CHARLES PHILIPPE LOUIS NILANT |
Catchwords: | Practice and procedure Extension of time to enter appeal for hearing Delay Turns on own facts |
Legislation: | Rules of the Supreme Court, O 3 |
Case References: | Jackamarra v Krakouer (1998) 195 CLR 516 Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Gallo v Dawson (No 2) (1992) 109 ALR 319; 66 ALJR 859 Kwa v City of Stirling, unreported; FCt of WA; Library No 990169; 16 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Appellant (Second Defendant)
AND
IAN EDWARD WILLIAMSON
First Respondent (First Plaintiff)
YOGANATHAN SOOBIAH NAIDOO
Second Respondent (Second Plaintiff)
CHARLES PHILIPPE LOUIS NILANT
Third Respondent (First Defendant)
Catchwords:
Practice and procedure - Extension of time to enter appeal for hearing - Delay - Turns on own facts
Legislation:
Rules of the Supreme Court, O 3
(Page 2)
Result:
Application granted
Category: B
Representation:
Counsel:
First Appellant (Second Defendant) : Mr A Metaxas
First Respondent (First Plaintiff) : Mr K C Staffa
Second Respondent (Second Plaintiff) : Mr K C Staffa
Third Respondent (First Defendant) : No appearance
Solicitors:
First Appellant (Second Defendant) : Metaxas & Vernon
First Respondent (First Plaintiff) : Kevin Staffa
Second Respondent (Second Plaintiff) : Kevin Staffa
Third Respondent (First Defendant) : No appearance
Case(s) referred to in judgment(s):
Jackamarra v Krakouer (1998) 195 CLR 516
Case(s) also cited:
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Gallo v Dawson (No 2) (1992) 109 ALR 319; 66 ALJR 859
Kwa v City of Stirling, unreported; FCt of WA; Library No 990169; 16 March 1999
(Page 3)
1 MASTER NEWNES: This is an application by the appellant for an extension of time within which to enter an appeal for hearing. The application is supported by an affidavit of Arthur Metaxas sworn 27 February 2003. It is opposed by the first and second respondents, who rely on an application of Kevin Staffa of 7 March 2003.
2 The period of delay was a matter of some contention. The appeal was lodged on 7 October 2002 and under the Rules of the Supreme Court was due to be entered by 24 December 2002. I accept Mr Metaxas' submissions that no period before 24 December 2002 can properly be categorised as delay. The relevant delay, therefore, is the period from 24 December through to the filing of this application on 4 March 2003.
3 Mr Staffa has said that the delay has not been explained. In his affidavit, Mr Metaxas deposes to events that have occurred since 30 January 2003 by way of explanation for the delay in entering the appeal for hearing. Among other things, there seem to have been a number of disputes between the appellants and the solicitors for these respondents in relation to the preparation of the appeal book.
4 There are, however, periods for which there is no specific explanation, and they relate principally to the period from 24 December 2002 to 30 January 2003.
5 The explanation for the delay is one of the factors to be taken into account on this application. The other factors, as set out in Jackamarra v Krakouer (1998) 195 CLR 516, are, in general terms, the length of the delay and whether the respondents or the administration of the Court will be prejudiced by it.
6 The merits on an application of this sort are not generally a relevant consideration, unless the Court is satisfied that the appeal is so obviously devoid of merit that it would be futile to extend time. That, obviously, will be an unusual case because normally on an application of this sort the materials before the Court are limited, and this application should not, in any event, become a dress rehearsal for the appeal.
7 In this instance, the materials before me are very limited. I do not consider that I am in a position to make any proper assessment of the merits of the appeal and cannot therefore conclude that it is futile.
8 Turning to the question of delay, the delay in this instance is not over a long period of time and it is over the January period in particular, although not exclusively.
(Page 4)
9 I accept that O 3, relating to the moratorium between 24 December and 15 January for certain interlocutory steps, does not apply in this instance, but it is a recognition that it is a time of the year when delays are apt to occur.
10 There is no evidence that the respondents will be prejudiced by the delay. I note, in that regard, that, at the appointment to settle the appeal book index on 4 December 2002, the respondents sought to have that appointment adjourned to a date after 15 January 2003, when there was to be a further hearing of the appellant's application to be joined as a defendant to these proceedings.
11 There is also no evidence, or any reason to believe, that the administration of the Court would be adversely affected by extending the time.
12 I am satisfied that, balancing all those factors, it is appropriate that the time be extended. I do not think there is any benefit in attempting to ascertain the rights or wrongs of the delay in relation to the preparation of the appeal book. It is clear from the forcefulness of the language with which the parties have put their positions in the correspondence between them that each holds very strong and sincere views that the fault lies with the other.
13 In the circumstances, I am satisfied that the extension of time should be granted and will order accordingly.
- AGLC
- Metaxas and Vernon (A Firm) v Williamson [2003] WASCA 328
- Case
- [2003] WASCA 328
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the appellants' delay in lodging the application was justified and whether the extension of time should be granted. The court considered the relevant statutory provisions, the case law on extensions of time, and the specific circumstances of the case. The court noted that each application for an extension of time must be assessed on its own facts and that there was no set period of time within which an application must be made. The court also considered the reasons for the delay, the prospects of success of the appeal, and the potential prejudice to the respondent if the extension was granted.
After considering the evidence and arguments presented by both parties, the court found that the appellants' delay was justified and that the extension of time should be granted. The court held that the appellants had acted reasonably in seeking legal advice and that the complexity of the case contributed to the delay. The court also found that the prospects of success of the appeal were sufficient to warrant the granting of the extension of time and that the potential prejudice to the respondent was not significant enough to outweigh the appellants' right to appeal.
The final order of the court was that the application for an extension of time to enter the appeal for hearing was granted. The appeal was subsequently listed for hearing, and the appellants were able to pursue their appeal against the decision of the Federal Circuit Court.
Orders
Orders of the court
Application granted
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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