Roy Galvin & Co Pty Ltd v Ives [No 2] - [2013] WADC 128

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ROY GALVIN & CO PTY LTD -v- IVES [No 2] [2013] WADC 128

CORAM: HERRON DCJ

HEARD: 29 JULY, 2 AUGUST 2013

DELIVERED : 7 AUGUST 2013

FILE NO/S: CIV 164 of 2009

BETWEEN: ROY GALVIN & CO PTY LTD
Plaintiff
AND
BENJAMIN WILLIAM IVES
Defendant

Catchwords:

Appeal from registrar - Application for extension of time - Significant delay - Prejudice - Summary judgment

Legislation:

District Court Rules 2005 r 15(2)
Rules of the Supreme Court 1971 O 3 r 5

Result:

Application for extension of time and appeal dismissed

Representation:

Counsel:

Plaintiff: Mr J F Park
Defendant: In person

Solicitors:

Plaintiff: Park Linfoot Legal Solutions
Defendant: Not applicable

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Simonsen v Legge [2010] WASCA 238

HERRON DCJ: This is a notice of appeal from a decision of Registrar Kingsley delivered 18 November 2009, in which he granted summary judgment to the plaintiff in the sum of $78,047.88, and an application for an extension of time in which to appeal which is expressed as an application pursuant to O 3 r 5 Rules of the Supreme Court (RSC).
The matter originally came before me on Monday 29 July 2013. At that time there was also before me an application by the defendant to vacate the hearing of his application for an extension of time in which to appeal and for an order that he be given leave to file and serve an affidavit in support of his application for an extension of time to appeal. After hearing the parties, I made the following orders:
1.By no later than 4.00 pm Wednesday 31 July 2013 the defendant file and serve an affidavit and any further materials he intends to rely upon.
2.The hearing of the application for an extension of time within which to appeal be adjourned to Friday 2 August 2013 at 2.15 pm.
3.Costs of today be reserved.
Mr Ives failed to comply with order 1 and did not file an affidavit in support of his application for an extension of time until the morning of 1 August. Counsel for the plaintiff does not take issue with the late filing of the affidavit.
In response the plaintiff filed an affidavit sworn by Kellie-Marie Woods sworn on 1 August 2013 and filed the same day. At the resumed hearing before me on 2 August, counsel for the plaintiff also sought leave to hand up two further affidavits in response to Mr Ives' affidavit sworn 31 July 2013. The first affidavit was sworn by Robert Paul Sherwood on 1 August 2013 and the second affidavit by Raymond John Robins sworn on 1 August 2013. Mr Ives' did not oppose those affidavits being handed up and accordingly, I granted leave for each of the affidavits to be filed and relied upon by the plaintiff in opposition to Mr Ives' appeal.
Mr Ives…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WADC 128
Decision Date: 7 AUGUST 2013

CaseChat Overview and Summary

The case of Roy Galvin & Co Pty Ltd v Ives [No 2] involves an appeal by the defendant, Mr Ives, against a decision of the Registrar to deny his application for an extension of time. The appeal is from a decision which refused an application for an extension of time to file a defence in the underlying proceedings. The case was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the Registrar erred in denying Mr Ives' application for an extension of time. The court had to determine if the delay in filing the notice of appeal and the subsequent application for an extension of time was justified and if it could be granted without causing prejudice to the plaintiff, Roy Galvin & Co Pty Ltd. The court was also required to consider whether the appeal was properly brought and if there were grounds for the appeal.

The court, in considering the application, highlighted that the rules regarding extensions of time are remedial and aim to prevent injustice. However, a party cannot automatically expect an extension if they have breached the rules. The court noted that the principles of case flow management and the need for finality in litigation are crucial. The court examined the factors outlined in Simonsen v Legge, which include the balance of fairness and justice between the parties. The court found that the significant delay in filing the notice of appeal and the subsequent application for an extension of time, without proper grounds or identification of alleged errors, did not justify an extension. The court also noted that the appeal was not properly brought as the notice of appeal did not contain any grounds of appeal.

The court ultimately denied the application for an extension of time, affirming the Registrar's decision. The appeal was dismissed with the court noting that the delay was significant and no compelling justification was provided for the extension. The court emphasised that adherence to procedural rules is essential to maintain the integrity of the legal system.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Paragraph 3.5.1 of the Civil Procedure Western Australia refers to the purpose of the rule for an extension of time.The rule is remedial and confers a broad power upon the court to relieve against an injustice which is not readily to be limited by judicial fiat: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283, 286; 77 ALR 411 at 417, 420 and Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86. Nevertheless, a party in breach of a requirement of the Rules as to time does not have an unqualified right to an extension. Prima facie, time limits must be obeyed and in order to justify the court granting an extension of time there must be some material on which it can exercise its discretion (Ratnam v Cumarasamy[1964] 3 All ER 933 at 935; [1965] 1 WLR 8 at 12). If a solicitor fails timeously to take the procedural steps which are necessary to advance his client's cause, the system of justice is in danger of breaking down: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 254; [1968]1 All ER 543 at 552.In the past it was said that the Rules should never be allowed to be an instrument of tyranny. In general, this meant that where an extension was sought to enable genuine issues to be litigated and this could be done with fairness to all concerned, it was appropriate to make the order (Outboard Marine Australia Pty Ltd v Byrnes[1974] 1 NSWLR 27 at 30). Now, however, the principles and objects of case flow management which are contained in O 1 rr 4A and 4B must now be taken into consideration: Melville v East End Holdings Inc [2003] WASCA 133. A relevant factor is also the desirability that there be finality of litigation and that a litigant who has obtained judgment in its favour has a vested right to retain the judgment: Simonsen v Legge [8](a). It is also necessary to consider the balance of fairness and justice to the parties in granting or refusing an application for an extension of time. I accept the factors outlined in Simonsen v Legge are factors that I need to consider in determining Mr Ives' application for an extension of time. In par 6 of his written submissions filed in support of an application to vacate the hearing date on 29 July to enable him to file an affidavit in support of his application for an extension of time, Mr Ives' itemises a number of matters and documents he wished to put before the court in support of his application. Mr Ives has now sworn and filed his affidavit addressing those issues and annexing those documents. The notice of appeal filed by Mr Ives does not set out any grounds of appeal. It is therefore impossible to assess from the notice whether there is any merit in the appeal. Although an appeal from a decision of a registrar is a hearing de novo and it is unnecessary to identify errors made by a registrar, given the significant length of the delay in filing a notice of appeal, the notice should have contained grounds of appeal and identified the alleged errors made by the registrar by which an objective assessment can be made as to the likelihood of success of the appeal.