Richardson v Leonard Cohen and Co (A Firm)
[2006] WASCA 64
•9 MARCH 2006
RICHARDSON & ANOR -v- LEONARD COHEN & CO (A Firm) [2006] WASCA 64
| Link to Appeal : | [2008] WASCA 101 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 64 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:121/2005 | 9 MARCH 2006 | |
| Coram: | WHEELER JA | 9/03/06 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHILLIP RICHARDSON BILL PALIGOROV LEONARD COHEN & CO (A Firm) |
Catchwords: | Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii) |
Case References: | Leonard Cohen & Co v Richardson & Anor [2005] WADC 172 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RICHARDSON & ANOR -v- LEONARD COHEN & CO (A Firm) [2006] WASCA 64 CORAM : WHEELER JA HEARD : 9 MARCH 2006 DELIVERED : 9 MARCH 2006 FILE NO/S : CACV 121 of 2005 BETWEEN : PHILLIP RICHARDSON
- BILL PALIGOROV
Appellants
AND
LEONARD COHEN & CO (A Firm)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
Citation : LEONARD COHEN & CO -v- RICHARDSON & ANOR [2005] WADC 172
File No : CIV 970 of 2000
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants : Mr P Redding (for the second-named appellant)
Respondent : Mr S V Forbes
Solicitors:
Appellants : Dennis & Co
Respondent : Stewart Forbes
Case(s) referred to in judgment(s):
Leonard Cohen & Co v Richardson & Anor [2005] WADC 172
Case(s) also cited:
Nil
(Page 3)
1 WHEELER JA: The history of this matter very briefly is as follows. The matter from which this appeal is sought to be brought is a decision in the District Court delivered September last year (Leonard Cohen & Co v Richardson & Anor [2005] WADC 172). The history of the action, which was described by his Honour, the Judge who made the orders sought to be appealed, as long and unfortunate, is set out in some detail in those reasons.
2 It is apparent that the appellants in this appeal have demonstrated a continuing disregard of their obligations under the Rules of the District Court1996 (WA) over a considerable period of time. The finding that was made in relation to them in [65] of the reasons below is that they:
" ... have deliberately attempted to frustrate the plaintiff's attempts to obtain proper discovery, and in doing so they have sought to avoid putting the plaintiffs [sic] in a position in which they will be able to prepare adequately for trial."
- The plaintiff is, of course, the present respondent. That was why the order was made then for judgment under the Rules of the District Court, from which these appellants seek to appeal.
3 One would have thought that in the circumstances there would have been a scrupulous compliance and a prompt compliance with the Rules of this Court. However, the file reveals that on 2 November the Court wrote to the appellants advising that the case had not been filed in accordance with the Rules and requested it to be filed forthwith. What appeared to be an appellants' case, or an attempt at one, was faxed to the Court on 7 November. On the 30th of that month, a letter was both faxed and posted to the appellants pointing out a number of defects with that case and pointing out, in particular, that a filing fee was required and that therefore a facsimile could not be accepted. That was refaxed on 25 January this year to the appellants' solicitors.
4 There was then a directions hearing on 7 February 2006. The appellants were not strictly represented and did not appear in person, but a friend of the second appellant, Mr Ferral, attended to seek an adjournment. There was no particular reason provided. The Registrar's note says that there was a possibility that a Bunbury firm might be instructed. The Registrar explained to Mr Ferral the non-compliance with the Rules and the serious delay in progressing the appeal. She explained that the appeal was at risk of being dismissed. One can only assume that those comments were transmitted to either the appellants or their solicitors.
(Page 4)
5 In any event, directions were made that the appellants file and serve their case no later than 14 February 2006, together with certain other orders, including that, in the event that the appellants failed to comply with that paragraph, the appeal be referred to a single Judge to consider whether the appeal should be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("the Rules"). There was also an order that the appellants pay forthwith the respondent's costs then fixed at $300.
6 A copy of those orders was sent to the solicitors for the appellants. Startlingly, given the history, the appellants' case was sent again by facsimile on 14 February. A member of the registry staff contacted the appellants' solicitors on 14 February and left a voice-mail message to the effect that the document could not be accepted for filing by fax because there was a filing fee, as had already been pointed out earlier. The same staff member again telephoned on 16 February and spoke to a person called Allan, to the effect that the case had a filing fee payable and that the case therefore could not be accepted for filing.
7 A notice was sent to the appellants' solicitors pointing out the failure to file the case by the due date and the fact of the referral to a single Judge of Appeal. In response to that, the solicitors have now instructed Mr Redding, who appears for the second appellant, but who frankly and properly tells me that there is nothing in his instructions which would explain the delay to date. His instructions from the second appellant (personally), are that if the matter were to be further adjourned, the second appellant would attempt to instruct solicitors who would then progress the appeal.
8 However, there is an absence of any explanation whatever for the considerable delay to date, and a history of the delays which is revealed in the reasons for decision in the District Court. So far as one can tell from the reasons in the District Court, simply looking at the history there disclosed, there is very slender merit, so far as one can discern, in the appeal. It seems to me that the appropriate course is to dismiss the appeal of both appellants, on the basis that the appellants have not obeyed the Rules or any order made under them; that is, they have not obeyed the Rules requiring the filing of the appellants' case, nor have they obeyed the order of the Registrar requiring them to file that case. For those reasons, I dismiss the appeal in respect of both appellants.
6