TET v SP - [2009] WASCA 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TET -v- SP [2009] WASCA 101

CORAM: NEWNES JA

HEARD: 12 JUNE 2009

DELIVERED : 12 JUNE 2009

PUBLISHED : 17 JUNE 2009

FILE NO/S: CACV 12 of 2009

BETWEEN: TET
Applicant
AND
SP
Respondent

ON APPEAL FROM:
For File No              :  CACV 12 of 2009
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :PENNY J
File No  :PTW 7113 of 2001

Catchwords:

Practice and procedure - Appeal - Application for extension of time to file appellant's case - Turns on own facts

Legislation:

Nil

Result:

Extension of time granted

Category: B

Representation:

Counsel:

Applicant: No appearance
Respondent: Mr R I M Bannerman

Solicitors:

Applicant: No appearance
Respondent: Bannerman Solicitors

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

Nil

NEWNES JA:

(This judgment was delivered extemporaneously on 12 June 2009 and has been edited from the transcript.)
There are two matters before me today. The appellant, who is acting in person, has applied for an extension of time to file and serve the appellant's case. The appeal has also been listed, pursuant to a Registrar's notice to attend dated 30 April 2009, for directions. There is no appearance today by or on behalf of the appellant.
The appeal notice arises out of proceedings in the Family Court. The appeal notice was filed and served on 23 January 2009. An amended appeal notice was filed on 25 February 2009 and served on that day.
The original appeal notice was plainly defective. While it identified the judge who made the decision and the date of the decision, it did not state details of the decision itself, but instead set out a number of allegations about the conduct of some of those involved in the Family Court proceedings. That deficiency was not overcome by the amended appeal notice, which in all material respects is in the same form.
The result is that the appellant has not identified for the purpose of the appeal the actual decision in respect of which the appeal is brought.
I intend, pursuant to the Registrar's notice to attend, to direct that, on or before 29 June 2009, the appellant file and serve a re‑amended appeal notice setting out details of the decision in respect of which the appeal is brought. The appeal notice must specify the particular orders in respect of which the appeal is brought.
I turn then to the appellant's application.
On 9 April 2009, the appellant made an application for interim orders, in effect:
1.that the time for the filing of the appellant's case be extended until after the appellant obtains legal aid so that the legal aid representative can apply for a fresh time limit to be fixed;
2.that this court recommend to the Legal Aid Commission that legal aid be granted to assist the appellant prepare the appellant's case.
In support of the application the appellant filed an affidavit sworn on 9 April 2009. The affidavit contains serious allegations of misconduct on the part of some of those involved in the Family Court proceedings. I do not propose at this stage to say any more than that about its contents. I infer, however, that in order to pursue the appeal the appellant is awaiting the outcome of complaints she has made to various agencies in relation to the matters set out in her affidavit.
The appellant's application came on before me on 15 May 2009. Counsel for the respondent appeared but there was no appearance by or on behalf of the appellant. However, later on 15 May 2009 the court received an email from the appellant in which the appellant said that she was in England for personal reasons. A copy of the email has been provided to counsel for the respondent and it is unnecessary for present purposes to describe the balance of the contents of the email. It is, however, material that the appellant did not say in the email when she would be returning to Australia.
The application was adjourned to today and the appellant was advised by the court registry by email that it was listed for hearing today. The appellant was also informed that if she was unable to attend the hearing, any written submissions in support of her application should be filed and served by 9 June 2009. The appellant is not present or represented today but I understand the appellant in fact seeks to have the appeal adjourned until investigations into the matter by various agencies have been completed.
I do not, however, consider that it is appropriate simply to adjourn the appeal for what, even on the application as it stands, would in effect be an indefinite period of time. Nothing that has been put before me would justify that. Once an appeal has been commenced it is incumbent upon the appellant to prosecute it with reasonable expedition and, subject to any orders of the court, in conformity with the rules of court, including the time limits set out in the rules. The filing of the appellant's case is well out of time. The appeal is becalmed until that step has been taken. I am conscious that the appellant is acting in person. I am also conscious of the statements the appellant has made about her personal circumstances. Nevertheless, the appeal cannot remain in limbo indefinitely. I would also add that it is not apparent why the results of the investigations to which the appellant has referred are necessary to enable her to prepare the appellant's case. I would not, therefore, accede to the appellant's application.
At present it does not appear there would be any specific prejudice to the respondent if an extension of time were granted. There is, however, the obvious intangible prejudice that arises simply from having the appeal hanging over her.
Having regard to all of the circumstances, including what the appellant has said about her personal circumstances and the fact that she is acting in person, I am prepared to allow the appellant a greater extension of time than would normally be the case. I will order that the time within which the appellant's case is to be filed and served be extended to 24 July 2009. That is a period of six weeks from now. I will list the appeal for directions at 10.30 am on 7 August 2009.
I would add that the appellant should be aware that if the appellant's case is not filed by 24 July 2009 it is likely she will be required to show cause why the appeal should not be struck out pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
In relation to the second part of the appellant's application, it is up to the appellant to make such application as she may see fit to the Legal Aid Commission for the provision of legal aid. Any such application will no doubt be assessed and determined as required under the Legal Aid Commission Act 1976 (WA). It is not for this court to make any recommendation as to whether or not the Legal Aid Commission should grant such an application.