Paxton v The Minister for Fisheries
[2007] WASCA 47
•23 FEBRUARY 2007
PAXTON -v- THE MINISTER FOR FISHERIES & ANOR [2007] WASCA 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 47 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:126/2006 | 23 FEBRUARY 2007 | |
| Coram: | BUSS JA | 22/02/07 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Directions given | ||
| B | |||
| PDF Version |
| Parties: | MARK ASHLEY PAXTON THE MINISTER FOR FISHERIES EXECUTIVE DIRECTOR OF DEPARTMENT OF FISHERIES |
Catchwords: | Practice and procedure Appeal Filing of appellant's case Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PAXTON -v- THE MINISTER FOR FISHERIES & ANOR [2007] WASCA 47 CORAM : BUSS JA HEARD : 23 FEBRUARY 2007 DELIVERED : 23 FEBRUARY 2007 FILE NO/S : CACV 126 of 2006 BETWEEN : MARK ASHLEY PAXTON
- Appellant
AND
THE MINISTER FOR FISHERIES
First Respondent
EXECUTIVE DIRECTOR OF DEPARTMENT OF FISHERIES
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER NEWNES
Citation : PAXTON -v- JON FORD, MINISTER FOR FISHERIES & ANOR [2006] WASC 194
File No : CIV 1395 of 2006
(Page 2)
Catchwords:
Practice and procedure - Appeal - Filing of appellant's case - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Result:
Directions given
Category: B
Representation:
Counsel:
Appellant : Mr D C Leask
First Respondent : Mr S M Murphy
Second Respondent : Mr S M Murphy
Solicitors:
Appellant : Leask & Co
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 BUSS JA: By a notice to attend dated 19 February 2007, the Court of Appeal Registrar has listed this appeal before me today for the appellant to show cause why his appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005. By that provision, a single Judge of this Court has jurisdiction to dismiss an appeal if the appellant has not obeyed these rules or any order made under them.
2 The appeal was commenced on 26 September 2006 and the appellant's case was required to be filed by 31 October 2006. It was not filed by the due date.
3 On 13 November 2006, the Associate to Registrar Eldred wrote to the appellant's solicitor and requested that the appellant's case be filed forthwith. By 7 December 2006, the appellant's case had still not been filed and the appellant's solicitor had not responded to the letter dated 13 November 2006 from the Registrar's Associate.
4 On 7 December 2006, Registrar Eldred listed the appeal for directions before her on 10 January 2007. At the hearing on 10 January 2007, the appellant's solicitor sought, and was granted, a further period of 14 days to file and serve the appellant's case. By 5 February 2007, the appellant's case had still not been filed.
5 On 5 February 2007, the Court wrote to the appellant's solicitor and again requested that the appellant's case be filed forthwith. The appellant's case has still not been filed.
6 The appeal is from the decision of Master Newnes to dismiss the appellant's application for an order nisi for a writ of certiorari against each of the respondents. The appellant sought to have quashed what he alleged was a decision of the first respondent, made 21 October 2005, that the appellant's claim to a "lost right to fish" was concluded and that the Ministerial exemption granted to him would not be further extended or renewed, and, further or alternatively, a decision of the second respondent, made 25 October 2005, refusing to recognise the appellant's claimed right to one managed fishery licence.
7 At the hearing before Registrar Eldred on 10 January 2007, the appellant's solicitor, Mr Leask, explained the delay, as follows:
"It's due to a number of factors, one of which is a dialogue between myself and my client as to the grounds of the appeal and how they should be set out.
(Page 4)
- The other reason, and I can't get away from this, is that I have also been extremely busy and I haven't been able to devote the time that I should have to getting ready."
8 On 22 February 2007 the appellant filed an affidavit sworn by Mr Leask on that date. In the affidavit Mr Leask deposes, relevantly and in effect:
(1) On 1 September 2004 the appellant applied to the Department of Fisheries for the grant of a fishing licence, which licence would, if granted, have replaced, in effect, the appellant's alleged fishing rights and interests which were the subject of the prerogative writ proceedings before Master Newnes.
(2) The licence application was refused, and the appellant applied to the State Administrative Tribunal, in application DR 630 of 2005, for a review of the refusal.
(3) On 22 March 2007 the Tribunal will hear a preliminary issue in application DR 630 of 2005.
(4) If the preliminary issue is determined against the appellant, then it is likely that the appellant's application for review will be dismissed. If application DR 630 of 2005 is dismissed, then the appeal before this Court will become redundant.
(5) If the appellant were to be required to file and serve his case forthwith, then the resources required to be expended by the appellant, and, possibly, all parties, would be wasted in the event that the preliminary issue in the proceedings before the Tribunal is determined against the appellant.
(6) The appellant seeks an order that the time for filing and serving the appellant's case in the appeal before this Court be extended to 14 days after the Tribunal delivers its decision in relation to the preliminary issue.
9 The appellant's application for an order nisi for a writ of certiorari was filed in the Supreme Court on 21 April 2006 and was heard by Master Newnes on 11 August 2006. The learned Master delivered his decision on 5 September 2006. I have been informed today by Mr Leask that the
(Page 5)
- application in the Tribunal was filed in 2005 and that an amended application was filed in early 2006. The proceedings in the Tribunal were therefore commenced well before the commencement of the proceedings which have given rise to this appeal. In my opinion, the appellant should be required either to prosecute this appeal in accordance with the rules, or to discontinue it.
10 I am satisfied that there is no reasonable excuse for the appellant's ongoing failure to file the appellant's case or for his disobedience to the orders of this Court. I will not dismiss the appeal today, but it is appropriate, in the circumstances, that a springing order be made. Accordingly, I will order that the appeal be dismissed and the appellant pay the respondents' costs of the appeal to be taxed, unless the appellant's case is filed and served by 4 pm on 2 March 2007.
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