Smolarek v Liwszyc

The case of Smolarek v Liwszyc involved the appellant, Smolarek, seeking to appeal against an order of the District Court of Western Australia. The respondent, Liwszyc, opposed the appeal on the grounds that the application was not made within the prescribed time. The application for leave to appeal was lodged with the Supreme Court of Western Australia, which granted the appeal. However, the appeal was not lodged within the 28-day statutory period. The primary legal issue the court had to address was whether the Supreme Court had the discretion to antedate the order granting leave to appeal under Order 42 Rule 2 of the Supreme Court Rules 1971 (WA).

The court examined the principles relevant to the exercise of discretion to antedate orders, considering the context and circumstances of the case. The court highlighted that the discretion to antedate orders is not to be exercised lightly and requires compelling reasons to justify such an action. The court found that the appellant's delay in lodging the application for leave to appeal was not excusable, but the respondent had not suffered any prejudice as a result of the late application. The court considered the overall fairness of the situation and the potential for significant injustice if the appeal were not allowed. Given these factors, the court exercised its discretion to antedate the order granting leave to appeal, allowing the appeal to proceed.

The Supreme Court of Western Australia granted the appeal and antedated the order, permitting the appeal to proceed. The court acknowledged that the delay in lodging the application for leave to appeal was not excusable but determined that the respondent had not been prejudiced by the late application. The court's decision was based on the principles of fairness and the potential for significant injustice if the appeal were not allowed. The Supreme Court exercised its discretion to antedate the order under Order 42 Rule 2 of the Supreme Court Rules 1971 (WA), allowing the appellant's appeal to proceed.