Ogbonna v Qantas Airways Limited

[2023] WASCA 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   OGBONNA -v- QANTAS AIRWAYS LIMITED [2023] WASCA 91

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   26 MAY 2023

DELIVERED          :   26 MAY 2023

PUBLISHED           :   26 MAY 2023

FILE NO/S:   CACV 19 of 2023

BETWEEN:   CELESTINE OGBONNA

Appellant

AND

QANTAS AIRWAYS LIMITED

First Respondent

QANTAS GROUND SERVICES PTY LTD

Second Respondent

Catchwords:

Appeal - Practice and procedure - Whether appeal should be dismissed for failure to file an appellant's case - Turns on own facts

Legislation:

Nil

Result:

Extension of time to file appellant's case granted, subject to springing order

Category:    B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	A Willinge
Second Respondent	:	A Willinge

Solicitors:

Appellant	:	In Person
First Respondent	:	Ashurst Australia
Second Respondent	:	Ashurst Australia

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

Nil

REASONS OF THE COURT:

1. At the conclusion of the hearing on 26 May 2023, we made the following orders for reasons to be published later:

   1.The time for the appellant to file and serve the appellant's case is extended to 4 pm on Friday, 2 June 2023, and the appellant is to file and serve the appellant's case by that time.

   2.If the appellant does not comply with order 1:

   (a)the application for leave to appeal is refused;

   (b)the appeal is dismissed;

   (c)the appellant is to pay the respondent's costs of the appeal, including any reserved costs, such costs to be assessed.

   3.The costs of today are reserved.

2. These are our reasons for making those orders.

3. As indicated by the appellant's appeal notice dated 28 February 2023, this appeal is against an order made by the primary judge on 16 February 2023.  The order identified in the appeal notice is an order that, from the date of the order, the appellant communicate with the respondent's solicitors solely in writing by way of email to a specified email address. 

4. Originally the appellant was required to file an appellant's case by 14 March 2023.  The time in which to do so was extended to 29 March 2023 by order of the acting Court of Appeal registrar made on 21 March 2023.

5. On 29 March 2023 the appellant lodged a purported appellant's case.  It was not accepted for filing as it was not compliant with the Supreme Court (Court of Appeal) Rules 2005 (WA). In particular, the purported appellant's case largely raised matters that are wholly irrelevant to the order the subject the notice of appeal and did not propose any variation to the order which is the subject of the appeal. The decision of the acting Court of Appeal registrar not to accept the document for filing was conveyed in a letter to the appellant dated 31 March 2023.

6. Also on 31 March 2023, the acting Court of Appeal registrar issued a registrar's notice to attend to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the CA Rules for failure to file and serve the appellant's case.

7. It is not in the interests of justice that the appeal be dismissed forthwith.  The appellant, a self-represented litigant, should be given one last chance to file a compliant appellant's case.  However, it should be recognised that the appellant has already been given an indulgence by the court.  Moreover, the appeal is against an interlocutory order on a matter of practice and procedure.  There are reasons to doubt that the appellant can establish that the order under appeal adversely affects his substantive rights such that leave to appeal will be granted.  In all the circumstances, it is in the interests of justice that the extension of time to file and serve a compliant appellant's case be subject to a self-executing order such that, in the event of continued non-compliance with the requirement to file and serve an appellant's case, the appeal will be dismissed automatically.

8. For these reasons, we made the orders noted above.

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

EM

Associate to the Honourable Justice Mitchell

26 MAY 2023