Reilly v Devcon Australia Pty Ltd
[2006] WASC 99
REILLY -v- DEVCON AUSTRALIA PTY LTD [2006] WASC 99
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 99 | |
| Case No: | SJA:1118/2005 | 29 MAY 2006 | |
| Coram: | MCKECHNIE J | 31/05/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to comply with programming orders by 7 June 2006 Liberty to apply | ||
| B | |||
| PDF Version |
| Parties: | PETER JOHN PATRICK REILLY DEVCON AUSTRALIA PTY LTD |
Catchwords: | Appeals practice and procedure Strike out for want of prosecution Principles when an appeal from an acquittal |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Procedure Rules 2005 (WA) |
Case References: | Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 Roddan v Gwilliam & Anor [2005] WASCA 209 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant (Respondent)
AND
DEVCON AUSTRALIA PTY LTD
Respondent (Appellant)
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R K BLACK
File No : PE 49364 of 2003, PE 49367 of 2003, PE 7593 of 2004, PE 7594 of 2004
Catchwords:
Appeals practice and procedure - Strike out for want of prosecution - Principles when an appeal from an acquittal
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Result:
Appellant to comply with programming orders by 7 June 2006
Liberty to apply
Category: B
Representation:
Counsel:
Appellant (Respondent) : Mr M A G Jenkin
Respondent (Appellant) : Mr P J McGowan
Solicitors:
Appellant (Respondent) : State Solicitor's Office
Respondent (Appellant) : Phillips Fox
Case(s) referred to in judgment(s):
Roddan v Gwilliam & Anor [2005] WASCA 209
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: Significant unexplained delay by the appellant has continued to the hearing of this application to dismiss the appeal for want of prosecution. Only by standing back and having a broad look at the justice of the case have I concluded, by the merest margin, that the appellant should be given one last short opportunity.
2 On 18 September 2002 a concrete tilt-up panel partially erected on a Myaree building site fell and killed Desmond John Kelsh. A year later the respondent was charged with breaches of the Occupational Safety and Health Act 1984 (WA). The matter proceeded to trial in August and September 2004 and May 2005, the trial occupying 22 days. On 19 October 2005 the Magistrate delivered a reserved decision dismissing the charges.
3 On 24 November 2005 I granted leave to appeal and made programming orders, one of which was:
"3. The appellant and the respondent to lodge and serve:
(a) written submissions
(b) chronology of events relevant to the appeal
(c) a printed list of the principal legal authorities on which the parties rely with relevant passages clearly delineated."
"I will finalise the Devcon appeal submissions and file them on Wednesday, 26 April 2006. As previously discussed, there will not be a problem from our point of view with your client having as long as is reasonably necessary to prepare its Outline of Submissions in response."
5 The email also advised that the foreshadowed application to dismiss for want of prosecution would be opposed.
(Page 4)
6 The respondent filed this application on 20 April 2006. Following discussions by Court staff with both parties as to counsel's availability in early May, the application was listed for hearing before me on 29 May 2006.
7 Astonishingly, the appellant's solicitor failed to file submissions on 26 April 2006 as promised. No submissions have been filed since. Nor has there been any explanation given on affidavit either as to the reasons for the delay or advancing a revised timetable for compliance. Moreover, the appellant failed to comply with Practice Direction No 5 of 1997 (List of Authorities Outlines of Submissions) for this hearing. Counsel for the appellant asked for an indulgence to file submissions by Friday week, eliciting I am afraid, a blunt response from me.
8 In short, the appellant's solicitor has taken no steps to advance the appeal since 8 February 2006, has proffered no explanation to the Court as to the reason for delay, and has given no assurance that things will now proceed promptly or indeed at all. I am surprised that the State Solicitor's Office has conducted itself so badly.
9 The principles are well settled and are conveniently and authoritatively restated in Roddan v Gwilliam & Anor [2005] WASCA 209 following The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93. Apart from one matter not covered by those authorities, and relevant to this appeal, I do not need to restate the principles which I apply.
10 Clearly the delay is unexplained. The delay is significant, though measured against tardy litigation that has been excused in this Court for one reason or another, is probably not inordinate. The respondent has not contributed to the delay.
11 This application is appropriate. The discretion to dismiss the appeal is enlivened by the appellant's continued failure without explanation to comply with Order 3. In the end two matters stand out as decisive. Both derive from this being a criminal prosecution. The defendant has been acquitted. A prosecution at trial is not simply the first step in a process that may include many appeals. It is a final decision. A party is entitled to the fruits of judgment and if an acquittal is put in issue by an appeal is entitled to a prompt resolution. A delay in the appeal without default by the respondent presumptatively increases the prejudice necessarily suffered.
(Page 5)
12 On the other hand, there is a clear public interest that the Occupational Health and Safety laws are upheld and that convictions and acquittals are attained without error. The Criminal Appeal Act imposes no restriction on prosecution appeals from the Magistrates Court. There is a clear public interest in an authoritative determination of questions of law and this appeal raises questions of mixed law and fact. The public interest represented by a prosecutor is a different interest from those of other litigants. That public interest is not easily defeated notwithstanding the unexplained, and I hope extraordinary delay in this case unless the prejudice to the respondent becomes too great a cost to allow the matter to continue.
13 In this case, balancing all the matters relevant to the exercise of the discretion, I conclude that justice may be served without the drastic step of shutting out the appellant from pursuing the appeal forthwith.
14 However, there must now be very prompt action by the appellant.
15 I make the following orders:
1. The appellant comply with Order 3 of the Orders on Application for Leave made 24 November 2005 no later than 4.30 pm on 7 June 2006.
2. If there is a failure to comply, then the respondent has liberty to relist this application before me at short notice.
16 I will hear the parties as to a revised timetable for Orders 5 and 6. I will also hear the parties as to the costs of this application.
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