Tetlow v Department of Planning and Infrastructure
[2007] WASCA 252
•26 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TETLOW -v- DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2007] WASCA 252
CORAM: PULLIN JA
BUSS JA
HEARD: 26 OCTOBER 2007
DELIVERED : 26 OCTOBER 2007
FILE NO/S: CACV 54 of 2007
BETWEEN: BEVERLEY DIANNE TETLOW
Appellant
AND
DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :TETLOW -v- DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2007] WADC 28
File No :APP 68 of 2006
Catchwords:
Appeal - Whether grounds of appeal should be struck out on grounds that none has reasonable prospects of succeeding - No new point of principle
Legislation:
District Court of Western Australia Act (WA), s 79
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D Tetlow
Respondent: Mr B P Wheatley
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
PULLIN JA: This is an application relevantly pursuant to r 43(2)(f) of the Supreme Court (Court of Appeal) Rules 2005 (WA) to strike out the basis of appeal on the ground that none of them has a reasonable prospect of succeeding, and also pursuant to r 43(2)(g)(i) to dismiss the appeal for that reason.
The appeal is against a judgment of Judge Keen dismissing the appellant's application for an extension of time to appeal to the District Court from a judgment of Mr Bromfield SM in the Local Court, dated 24 February 2006. The judgment in the Local Court was for the sum of $6,569.02 due to the respondent for rent.
The time limited for an appeal was 21 days. The appellant lodged a notice of appeal in the District Court on 21 September 2006, which was nearly six months out of time, and then made an application for an extension of time which was heard by Judge Keen.
Under s 79 of the District Court of Western Australia Act 1969 (WA), the appellant requires leave to appeal to this court because Judge Keen's decision was not a final judgment. It was an interlocutory judgment. Ordinarily, leave will only be granted where the decision was wrong or attended with sufficient doubt to justify the grant of leave and substantial injustice would occur if the decision were left unreversed.
Judge Keen correctly directed himself as to the law governing the application for an extension of time - see [21] of his reasons. The reasons given by the appellant for the delay in appealing to the District Court and referred to by Judge Keen, were specious for the reasons given by Judge Keen.
On behalf of Mrs Tetlow, Mr Tetlow asserted in this court that his wife believed she could not appeal unless she had received the certificate of judgment from the Magistrates Court, and that she did not see a copy of such a certificate until September 2006. No affidavit filed in this court contains that evidence, but Mr Tetlow referred to affidavits filed in the District Court which were said to be to that effect.
In fact, there appear to be no affidavits of Mrs Tetlow to which this court has been referred, but there were affidavits of Mr Tetlow which might be read as suggesting what Mr Tetlow has put forward; although they may also be read as meaning that Mrs Tetlow wanted to secure the certificate to obtain details of the terms of the judgment. It is clear, however, that Mrs Tetlow did know of the amount of the judgment a long time before the notice of appeal was filed in the District Court.
However, even if Mrs Tetlow did have an explanation for the delay, there is still a question about whether or not the grounds of appeal were arguable, and that was something which Judge Keen considered. It is clear that no extension of time should be granted merely for the purpose of advancing an unmeritorious case.
As to the merits of the appeal proposed in the District Court, Judge Keen considered that the appellant had not demonstrated any arguable error on the magistrate's part. There are six grounds of appeal in this court. The first three are grounds directed to demonstrating error in the magistrate's reasons for decision, and the second three grounds are directed to Judge Keen's reasons for decision.
The first identifiable point raised is in ground 1(b) of the first set of three grounds, and in ground 1(b) of the second set of three grounds. The contention is that the respondent did not give notice pursuant to s 81 of the Property Law Act 1969 (WA). This section is irrelevant because it does not apply to proceedings brought for payment of rent. Those grounds therefore have no reasonable prospect of succeeding.
A second point - a contention raised in the submissions and the subject of most of the grounds of appeal before Judge Keen but not raised in grounds of appeal to this court - was that the offer of a lease was not stamped. However, Judge Keen concluded that the instrument was not chargeable with duty and had in fact been 'marked by the stamping authorities' to that effect. There is no challenge to that conclusion.
That contention, even if contained in a ground of appeal, has no reasonable prospect of succeeding. All the other grounds are frivolous or vexatious, or do not have a reasonable prospect of success, because they are either argumentative or meaningless or do not demonstrate any arguable error on the part of the judge in the District Court. Indeed, Judge Keen was correct to dismiss the appellant's application for an extension of time for the reasons that he gave.
As a result, all grounds should be struck out and the appeal should be dismissed.
BUSS JA: I agree with Pullin JA for the reasons he gives, that the grounds of appeal should be struck out and the appeal should be dismissed.
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