Sims v Suda Ltd

[2015] WASCA 65

SIMS -v- SUDA LTD [2015] WASCA 65

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 65
Court:	THE COURT OF APPEAL (WA)	Published:	30/03/2015
Case No:	CACV:145/2014	Heard:	19 MARCH 2015
Coram:	BUSS JA NEWNES JA	Delivered:	19/03/15
No of pages:	4	Judgment Part:	1 of 1
Result:	Order that appeal be dismissed unless appellant files and serves appellant's case by 4.00 pm on 2 April 2015
Category:	B
PDF Version

Parties:	DOUGLAS ARTHUR SIMS SUDA LTD
Catchwords:	Practice and procedure Application for order that appeal be dismissed for failure to file appellant's case Obligation to comply with time limits Springing order made
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(ii)
Case References:	Sims v Jooste (No 2) [2014] WASC 373 Sims v Jooste [2013] WASCA 245 Sims v Suda Ltd [2014] WADC 161 Sims v Suda Ltd [2014] WADC 7 Sims v Suda Ltd [2014] WASCA 113 Suda Ltd v Sims [2014] WASC 376

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SIMS -v- SUDA LTD [2015] WASCA 65 CORAM : BUSS JA

NEWNES JA

HEARD : 19 MARCH 2015 DELIVERED : 19 MARCH 2015 PUBLISHED : 30 MARCH 2015 FILE NO/S : CACV 145 of 2014 BETWEEN : DOUGLAS ARTHUR SIMS

Appellant

AND

SUDA LTD
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DAVIS DCJ

Citation : SIMS -v- SUDA LTD [2014] WADC 161

File No : CIV 3938 of 2012

Catchwords:

Practice and procedure - Application for order that appeal be dismissed for failure to file appellant's case - Obligation to comply with time limits - Springing order made

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(ii)

Result:

Order that appeal be dismissed unless appellant files and serves appellant's case by 4.00 pm on 2 April 2015

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr N C Ebbs

Solicitors:

Appellant : In person
Respondent : Bennett + Co

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

Sims v Jooste (No 2) [2014] WASC 373
Sims v Jooste [2013] WASCA 245
Sims v Suda Ltd [2014] WADC 161
Sims v Suda Ltd [2014] WADC 7
Sims v Suda Ltd [2014] WASCA 113
Suda Ltd v Sims [2014] WASC 376



1 JUDGMENT OF THE COURT: On 10 February 2015, the respondent applied for an order that the appeal be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the ground that the appellant had failed to file the appellant's case as required by r 32 of the Court of Appeal Rules.

2 At the hearing of the application on 19 March 2015 we ordered that the appeal be dismissed and the appellant pay the respondent's costs of the appeal (including any reserved costs) to be taxed unless the appellant files and serves the appellant's case by 4.00 pm on 2 April 2015. We said we would publish reasons for our decision. The following are the reasons.

3 On 20 November 2014, in the District Court, Davis DCJ dismissed the appellant's claim for damages against the respondent. On 26 November 2014, the appellant filed an appeal notice, appealing against that decision.

4 The appellant's case was due to be filed and served on or before 19 January 2015, the 35 day period for the filing of the appellant's case being extended by the operation of practice direction 7.1.

5 The document the appellant sought to file on 15 January 2015 as the appellant's case plainly failed to meet the requirements of r 32 for an appellant's case and was not accepted for filing pursuant to r 10(1) of the Court of Appeal Rules. By a letter dated 21 January 2015, the appellant was informed that it had not been accepted for filing because it did not comply with r 32.

6 Subsequently the parties agreed that the time for filing the appellant's case be extended to 30 January 2015. A consent minute to that effect was filed on 22 January 2015 and the order of the court made on 28 January 2015.

7 On 27 January 2015, the appellant sought to file another version of the appellant's case. This, too, plainly failed to meet the requirements of r 32 and again was not accepted for filing. By a letter dated 30 January 2015, the appellant was informed that it had not been accepted for filing because it did not comply with r 32.

8 From that point the appellant seems to have turned his attention elsewhere. As at 10 February 2015, when the present application was filed by the respondent, no further attempt had been made to file the appellant's case and no attempt has been made since. Even the listing of the respondent's application for hearing (of which the appellant was notified by email and by formal notice, both sent on 27 February 2015) did not stir the appellant into action. No explanation has been offered by the appellant for his inaction, inaction that cannot simply be explained by unfamiliarity with court processes. Whilst the appellant is not legally qualified, he has a good deal of experience in litigation in this and other courts, both acting in person: Sims v Jooste[2013] WASCA 245; Sims v Jooste (No 2)[2014] WASC 373; Suda Ltd v Sims[2014] WASC 376; Sims v Keene[2014] WASC 248; Sims v Suda Ltd[2014] WASCA 113; Sims v Suda Ltd[2014] WADC 7; Sims v Suda Ltd[2014] WADC 161 - and with legal representation.

9 The appellant's case is now some eight weeks late and almost seven weeks have elapsed since the appellant was notified that the second version of the appellant's case had not been accepted for filing. It could not have escaped his notice that he was in default of filing the appellant's case and it is unlikely he did not understand that he must make an application for an extension of time, supported by an affidavit setting out the circumstances which he said justified an extension. If, however, he was in any doubt as to what to do he should have sought advice. Instead he did nothing, apparently assuming that when the respondent's application came on for hearing he would be granted another extension of time.

10 The importance of compliance with the rules and orders of the court cannot be overstated. The rules and orders of the court are not mere suggestions to be acted upon or not as it suits a litigant. The public interest in the effective utilisation of the public resources of the court and the interests of the other party in an expeditious and cost effective resolution of the appeal require that the rules and orders of the court be complied with, and if circumstances arise which make that impossible, that steps are taken promptly to seek an extension of time. Extensions of time are not, and cannot be, there simply for the taking.

11 Ultimately, in this case we concluded that the appellant should be given one more opportunity to file the appellant's case, but only on the basis that if he failed to do so within the stipulated time the appeal would stand dismissed. Accordingly, we made the orders referred to earlier.