Mubarak v Kelly

[2021] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MUBARAK -v- KELLY [2021] WASCA 75

CORAM:   BUSS P

MITCHELL JA

HEARD:   19 FEBRUARY 2021

DELIVERED          :   19 FEBRUARY 2021

PUBLISHED           :   30 APRIL 2021

FILE NO/S:   CACV 112 of 2020

BETWEEN:   KIDIMA MUBARAK

Appellant

AND

GEORGIA ROSE KELLY

First Respondent

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SHEPHERD DCJ

Citation: MUBARAK v KELLY [2020] WADC 136

File Number            :   CIV 3183 of 2018

Catchwords:

Interlocutory civil appeal - Practice and procedure - Repeated failure by the appellant to file and serve his appellant's case - Springing order

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(2)(a), r 43(2)(g)(ii)

Result:

Springing order made in relation to the filing and serving of the appellant's case

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	Mr D R Clyne

Solicitors:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	HBA Legal

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

Mubarak v Kelly [2020] WADC 136

REASONS OF THE COURT:

1. On 3 November 2020, the appellant filed an appeal notice in respect of a decision made by Shepherd DCJ in pending proceedings in the District Court.

2. The appeal relates to various procedural orders made by Shepherd DCJ on 23 October 2020, including orders in respect of discovery and particulars.  See Mubarak v Kelly.[1]

   [1] Mubarak v Kelly [2020] WADC 136.

3. The appeal is an interlocutory civil appeal.

4. Pursuant to r 32(2)(a) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules), the appellant was required to file his appellant's case by 4.00 pm on 17 November 2020. The appellant failed to comply with that requirement.

5. On 11 December 2020, Murphy and Vaughan JJA ordered, relevantly, that the time for the appellant to file and serve his appellant's case be extended to 4.00 pm on 22 January 2021.  The appellant failed to comply with that order.

6. On 5 February 2021, the Acting Court of Appeal Registrar issued a Registrar's notice to attend before the court on 19 February 2021 at not before 3.00 pm. The purpose of the hearing was for the appellant to show cause why the appeal should not be dismissed, pursuant to r 43(2)(g)(ii) of the Court of Appeal Rules, for failure to file and serve his appellant's case.

7. At the hearing on 19 February 2021, the Court explained to the appellant that the question the appellant needed to address was why his appeal should not be dismissed in consequence of his failure to file and serve his appellant's case by 4.00 pm on 22 January 2021.  The Court also explained to the appellant the fundamental requirements of the Court of Appeal Rules in relation to the content of an appellant's case.

8. The Court informed the appellant that the Court had, in effect, three options.  First, to dismiss the appeal.  Secondly, to grant the appellant another extension of time to file and serve his appellant's case.  Thirdly, to grant the appellant a further extension of time but, in addition, to make an order to the effect that if the appellant did not file and serve his appellant's case within the further extended time, his appeal would automatically be dismissed.  The appellant said that he understood those options.

9. The appellant made wide ranging submissions at the hearing on 19 February 2021.  The vast majority of his submissions were irrelevant.  By way of example, the appellant made serious allegations, without any evidentiary basis, of misconduct by judicial officers.  By way of another example, the appellant made assertions as to what he perceived were the merits of his claims in the pending proceedings in the District Court and the merits of his interlocutory civil appeal from the various procedural orders made by the primary judge on 23 October 2020.

10. At the conclusion of the hearing on 19 February 2021, we were satisfied that it was appropriate to make a springing order; that is, to grant the appellant a further extension of time to file and serve his appellant's case, but, in addition, to make an order to the effect that if the appellant did not file and serve his appellant's case within the further extended time, his appeal would automatically be dismissed.  The making of the springing order was justified by the appellant's repeated failures to file his appellant's case as required by the Court of Appeal Rules or orders of the Court and by the absence of any adequate explanation for those failures.

11. Accordingly, at the conclusion of the hearing the Court made the following orders:

    (1)The time for the appellant to file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) is extended to 4.00 pm on 15 March 2021.

    (2)Unless by 4.00 pm on 15 March 2021 the appellant files and serves an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) the appeal is dismissed and the appellant shall pay the respondent's costs of the appeal, including reserved costs to be assessed.

    (3)The costs of each party in connection with the Registrar's notice to attend dated 5 February 2021 are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TW

Associate to the Honourable President Buss

30 APRIL 2021