| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TETLOW -v- PARN & ANOR [2005] WADC 53 CORAM : COMMISSIONER POWER HEARD : 25 FEBRUARY 2005 DELIVERED : 24 MARCH 2005 FILE NO/S : CIVO 143 of 2004 BETWEEN : DESMOND TETLOW Applicant
AND
MARTY PARN
PAUL KENNEDY
Respondents
Catchwords: Practice and procedure - Application to dismiss appeal for want of prosecution - Turns on own facts - Application dismissed
Legislation: Nil
Result: Application dismissed
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Representation:
Counsel:
Applicant : In person
Respondents : Mr A J Prentice
Solicitors:
Applicant : Not applicable
Respondents : Mossensons
Case(s) referred to in judgment(s):
Jackamarra v Krakouer (1998) 195 CLR 516
Murcia Holdings Pty Ltd v City of Nedlands [2000] WASCA 275
Case(s) also cited:
Nil
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1 COMMISSIONER POWER: This is an application by the respondents to dismiss the appellant's appeal for want of prosecution.
2 The appellant filed a notice of application for leave to appeal and notice of application for an interim stay of execution on 8 June 2004. The decision the subject of the applications was a decision by His Worship Mr Whitely SM in the Local Court, which was made on 27 May 2004. On 11 June 2004 the respondents filed a notice of intention to be heard. It was served on the appellant by letter dated 12 June 2004. In accordance with O 8 r 16 of the District Court Rules 1996, the appellant had until 13 July 2004 to enter the appeal for hearing. The appeal was not entered for hearing within the prescribed time. As a consequence, on 15 November 2004 the respondents filed an application to dismiss the appeal, or in the alternative, for such other orders as the court deems fit. It is this application which I am required to decide. 3 The principles on which such applications are to be decided are described in the decisions of Jackamarra v Krakouer (1998) 195 CLR 516 and Murcia Holdings Pty Ltd v City of Nedlands [2000] WASCA 275, and are well established. 4 In Jakamarra Kirby J relevantly described the applicable principles for procedural time defaults in the following terms: "1. The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language. … In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. ... This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances." (p 539) 5 He continued: "2. … where, … the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application. … Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will
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usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to. ... Inherent in the grant of a discretionary power is the assumption that it will sometimes be refused." (pp 539-540) 6 He then added: "3. … it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party's appellate rights. 4. The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused." (p 540) 7 In this regard, Kirby J was supported by Brennan CJ and McHugh J: "… the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time." (p 521) 8 Kirby J emphasised the need for and role of efficient case management and its relationship to the ultimate obligation of the court in the following terms:
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inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires ..." (p 542) 9 The same sentiments were echoed by Gummow and Hayne JJ in the same decision: "…the rules of court prescribe times for the taking of certain steps in a proceeding. They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than ninety years ago as the 'sporting theory of justice' ... They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation, … so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation." (pp 526 - 527) 10 The reasoning in Jackamarra was largely approved in Murcia Holdings. The courts in Jackamarra and Murcia Holdings also outlined other relevant factors as including whether the delay was intentional or contumelious or merely the result of a bona fide mistake or blunder and whether the delay was that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of the parties' legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any prejudice might be remedied by an appropriate award of costs is a further consideration which is sometimes relevant (see Jackamarra p 543 and Murcia Holdings at [22]). 11 In short, the authorities make it clear that I need to consider a number of factors in the exercise of my broad discretion when considering whether or not to dismiss the appeal. They include whether the appeal is devoid of merit, the length of the delay in compliance with the relevant time limit, whether there is an acceptable explanation for the delay, whether the delay is intentional or contumelious, whether it is the result of a bona fide mistake or blunder, whether the delay is that of the litigant or the legal advisors, whether the dilatory party could have done anything to safeguard its own interests, the nature and extent of any prejudice to the
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non-dilatory party and whether any such prejudice is capable of being remedied by an appropriate costs order. 12 Since the application to dismiss the appeal for want of prosecution was lodged, the appellant has taken no steps to either enter the appeal for hearing or to seek an extension of time to enter the appeal for hearing. 13 The court has not ordered a stay of execution. That application came before the court on four occasions, being 18 June, 2 July, 19 July and, finally, 28 July 2004. On each of the first three occasions the application was adjourned at the request of the appellant. On the last occasion, the application was dismissed with an order that the appellant pay the respondents' costs of the application, including all costs reserved on the three previous hearings. The court also ordered that the grounds of appeal be re-drawn, so as to make them understandable. The amended grounds of appeal were ordered to be filed and served within 28 days, namely, by 25 August 2004. The appellant did not file or serve amended grounds of appeal by 25 August 2004. 14 On 8 September 2004, the solicitors for the respondents wrote to the solicitors for the appellant confirming, among other things, that they had not received any amended notice of appeal and that they were instructed to file an application to strike out the appeal unless they received a notice of discontinuance by close of business on 9 September 2004. By letter dated 9 September 2004, the solicitors for the appellant wrote to the solicitors for the respondents advising, among other things, that they would not be able to finalise the amendments to the grounds of appeal until 10 September 2004. 15 On 18 October 2004, the solicitors for the respondents sent a facsimile transmission to the solicitors for the appellant advising that unless the appellant agreed to pay the costs already awarded against him, an application would be brought to strike out the appeal. There was no response from the appellant or the appellant's solicitors to that letter. 16 The application to dismiss the appeal, which was filed on 15 November 2004, was listed for hearing on 26 November 2004. The appellant filed no further documents before that hearing. 17 On 26 November 2004, the hearing of the application was adjourned to 10 December 2004 to allow the appellant to obtain legal advice and representation. Costs were reserved.
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18 On 10 December 2004, the court ordered that the appellant file and serve a fresh notice of appeal within seven days. It otherwise adjourned the hearing of the application to the general chambers list on 17 December 2004 and ordered that costs be reserved.
19 Significantly amended grounds of appeal were filed on 16 December 2004. 20 On 17 December 2004, the application was adjourned to the special appointment which was argued before me. 21 No application has been made to extend the time to extend the appeal for hearing and it has still not been entered for hearing. 22 The amended grounds of appeal are as follows: "(1) The continual unnecessary interjections by the Magistrate during the trial prevented the Appellant from presenting or pursuing his defence and counterclaim and tendering exhibits in support of his counter-claim. (2) The Magistrate, having found that the Respondents agreed to waive the Appellant's liability for rent erred in deciding that the waiver was not enforceable. (3) The Magistrate should have found that the waiver of rent was agreed by the Respondents in consideration of the Appellant's agreement to vacate the leased premises prior to the settlement of the sale of the premises and that the Appellant did so vacate the premises." 23 A portion of the transcript of the trial in the Local Court is annexed to the affidavit of the appellant sworn 1 July 2004. It appears from that transcript that the decision in the Local Court was delivered extemporaneously. 24 Even allowing for some inelegance in the way in which the amended grounds of appeal have been framed, it would simply be unsafe to arrive at the conclusion that they are devoid of merit without at least having the advantage of reviewing the transcript of the remainder of the trial. Regrettably, I have not had that advantage. The balance of the transcript was not before me at the hearing. 25 The appellant has put forward a number of explanations for his failure to enter the appeal for hearing within time.
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26 In par 27 of the appellant's affidavit sworn 9 December 2004, the appellant proffered the following explanation:
"27. The extenuating circumstances of our Business relocating in August 2004 to other premises along with Supreme Court actions, the Local Court Bailiff action and the requirement of borrowed funds to cover and then the non-payment to our Business of $106,000.00 on a Sales and Construction Contract by the purchasers after delivery has unfortunately taken a toll upon my time to have seen to this matter earlier although it was completed as early as September 2004." 27 This explanation was not developed in oral submissions, with the result that it is difficult to understand whether or not it is an acceptable explanation for the failure to enter the appeal within time. At best, it appears to put forward the relocation of the appellant's business, the existence and management of a significant business debt, litigation and the execution of a Local Court judgment and the time required to attend to those matters as reasons for failing to enter the appeal within time. 28 The appellant argued that he was not at fault for failing to enter the appeal within time. He contended that the failure to enter the appeal within time and the failure to file a fresh notice of appeal including amended grounds of appeal within time were the fault of his then solicitors. He maintains that he was, until recently, unaware of the need to enter the appeal for hearing within a prescribed time and relied on his then solicitors to do so or to seek an extension of time for that to occur. Alternatively, he maintains, those solicitors should have informed him that he would need to do one or the other. He claimed that he was not advised of the need to do either. 29 As to compliance with the order that amended grounds of appeal be filed by 25 August 2004, the appellant informed me that his then solicitors advised him to re-draw amended grounds of appeal. He also informed me from the bar table that he delivered these re-drawn and amended grounds of appeal to his then solicitors on 15 August 2004 and again on 23 September 2004. No satisfactory explanation was given for why it was necessary for him to deliver them twice. Nor is there any evidence before me to this effect. However, par 9 of the appellant's affidavit sworn 21 February 2005 states that the appellant re-drafted and delivered grounds of appeal to his then solicitors' office on 23 September 2004. This is also mentioned in par 17 of the appellant's affidavit sworn
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9 December 2004. Neither affidavit makes any mention of an attendance on 15 August 2004. The affidavits say nothing about amended grounds of appeal being delivered by the appellant to his then solicitors on 15 August 2004. 30 I also note that there was in evidence before me, by agreement, a letter from the appellant's then solicitors to him dated 29 July 2004, in which the appellant was specifically advised that he had 21 days from 28 July 2004 within which to amend his application for leave to appeal. The letter suggested a discussion about the matter in the week following. 31 It appears from their letter dated 25 January 2005, which was also in evidence before me by consent, that the solicitors who acted for the appellant during the period in which he failed to enter the appeal for hearing within time and failed to file a fresh notice of appeal, including amended grounds of appeal, within time, advised him that they ceased to act for the appellant at or about that date. According to par 20 of the appellant's affidavit sworn 21 February 2005, the same solicitors advised him that they no longer continued to act for him at a meeting on 11 January 2005. The appellant has been unrepresented since, at the latest 25 January 2005, and was unrepresented at the hearing of this application before me on 25 February 2005. 32 Even if the appellant was unaware of the need to enter his appeal for hearing by 25 August 2004, he was aware of the application to dismiss his appeal by no later than his attendance at the first hearing of that application on 26 November 2004. 33 It either must or should have been apparent to the appellant by no later than 26 November 2004 that it would be at least prudent to obtain some legal advice on the application to dismiss his appeal. His failure to apply to extend time to enter the appeal for hearing is most likely indicative of either a decision by him to ignore any advice to that effect or a failure to take steps to obtain it. As I have already indicated, the need to obtain some advice on the application to dismiss his appeal should have been obvious to him by no later than 26 November 2004. 34 It appears from par 10 of the affidavit of Mr Petani sworn 17 February 2005, that the appellant had an opportunity to obtain legal advice, and perhaps representation, by no later than the second hearing of this application on 10 December 2004, about the requirement to enter the appeal for hearing within time and the requirement to file a fresh notice of appeal, including amended grounds of appeal, within time and the
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consequences of not doing so in each case. It is not clear from the evidence before me whether he availed himself of that opportunity and obtained any advice about these matters at that time. 35 The appellant's delay in amending his grounds of appeal and his delay in seeking an extension of time to enter the appeal for hearing and his continued failure to do so, when looked at in the context of the conduct of his appeal to date, are unsatisfactory and, in the case of his failure to seek an extension of time within which to enter the appeal, is inadequately explained, from at least 26 November 2004. 36 On the evidence before me, I am unable to conclude that his failure to seek an extension of time within which to enter the appeal for hearing was intentional. Even making some allowance for his assertion from the bar table that the failure to enter the appeal for hearing within time and the continued failure to seek an extension of time for that to occur was and is the fault of his then solicitors, it could not excuse any failure to obtain any legal advice or representation in relation to the application from no later than on or about 25 January 2005. As he informed me from the bar table, he was aware from that date that there was an application to strike out the appeal on foot, but he made no attempt to obtain legal advice or representation from any other source. 37 The delay in prosecuting the appeal has meant that the first named respondent is prejudiced by the loss of interest he would otherwise have earned on monies paid by him to the respondents' solicitors for legal fees incurred in the defence of this appeal, including the dismissed application to stay execution. The same respondent is also prejudiced in having to suffer the stress of litigation for the duration of the appeal proceedings, which he believes are being unreasonably protracted by the appellant's lack of prosecution. 38 The prosecution of this appeal, for whatever reasons, has been far from satisfactory. It is inappropriate and unjust that there should be such delay, much of which is inadequately explained. Such delay, as has occurred in this case, detracts from the attainment of justice and is highly undesirable. 39 Nonetheless, having concluded that the appeal is not so devoid of merit that it would be futile to extend time, making an appropriate allowance for the appellant's assertion that the failure to enter the appeal for hearing within time and the continued failure to seek an extension of time for that to occur was and is the fault of his then solicitors and
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mindful of the caution that a court should not exercise its powers of summary determination of a proceeding except in clear cases, I am, somewhat reluctantly, not inclined to dismiss the appeal for want of prosecution. On the other hand, it is not appropriate that the respondents continue to be prejudiced and delayed by the unsatisfactory way in which the appellant has conducted his appeal to date. In the circumstances, I am not prepared to simply extend time to enter the appeal for hearing. On the contrary, it is both appropriate and desirable in this case that the appellant be put on a strict timetable for compliance, which is what I will do. 40 In the circumstances, I will extend the time to enter the appeal for hearing to within 14 days of today's date and I will order that unless the appellant enters the appeal for hearing within that time it will be dismissed. I will also make an order that the appellant pay the respondents' costs of and incidental to this application to be taxed.
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