TK v EH

[2010] WASCA 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   TK -v- EH [2010] WASCA 68

CORAM:   NEWNES JA

HEARD:   19 APRIL 2010

DELIVERED          :   19 APRIL 2010

FILE NO/S:   CACV 131 of 2009

BETWEEN:   TK

Appellant

AND

EH
Respondent

Catchwords:

Practice and procedure - Appeal - Failure to file appellant's case within time - No appearance by appellant on directions hearing - Requirement of diligence in prosecution of appeal - Springing order made

Legislation:

Nil

Result:

Springing order made

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     Mr N W Marsh

Solicitors:

Appellant:     No appearance

Respondent:     Julienne Penny & Associates

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

Nil

1. NEWNES JA:  This appeal was listed this morning for directions, pursuant to a registrar's notice to attend, following the appellant's failure to file and serve the appellant's case.  When the matter was called on for hearing the respondent appeared by counsel but there was no appearance by or on behalf of the appellant.

2. Before dealing with the manner in which the matter should be disposed of today, it is necessary to set out the relevant history of the appeal.

3. On 6 November 2009, the appellant, who is not legally represented, filed and served a notice of appeal against orders of the Family Court of Western Australia made on 16 October 2009.  A notice of respondent's intention was filed on 11 November 2009.  The appellant's case was due to be filed and served on or before 11 December 2009.

4. On 10 December 2009, the appellant applied for an extension of time to file and serve the appellant's case.  The appellant filed an affidavit in support of the application.  In that affidavit the appellant deposed to problems with her right arm and to surgery on it which she was to undergo the following week.  The appellant said that she expected to be able to resume normal activities in early February 2010.

5. The respondent did not oppose an extension of time and, on 24 December 2009, an order was made on the papers extending the time for the filing and service of the appellant's case to 5 March 2010.  A copy of the orders was forwarded to each of the parties by letter dated 24 December 2009.

6. The appellant did not file the appellant's case by 5 March 2010 and, on 15 March 2010, the court wrote to the appellant noting that it had not been filed and asking for the matter to be given attention.  The appellant replied by letter dated 17 March 2010.  In that letter, the appellant said that she was gradually increasing the use she was able to make of her arm following surgery on 15 December 2009 but that she had been occupied by a number of other issues, including matters in the Family Court.  The appellant did not indicate when the appellant's case would be filed and served.

7. Nothing further having been heard from the appellant, on 9 April 2010 a registrar's notice to attend was issued and forwarded to the parties, informing them the appeal had been listed for directions before a single judge on 19 April 2010 at 10.30 am.  As I have mentioned, the appellant did not appear this morning.

8. I do not consider that it is appropriate simply to adjourn the matter to another date.  The appellant's case is now some four months out of time, including some six weeks beyond the extended date of 5 March 2010.  The appellant's letter of 17 March 2010 does not provide a satisfactory explanation for the failure to comply with the extended time limit and provides no indication of when the appellant's case will be filed and served.

9. The appeal cannot be allowed to remain dormant indefinitely.  It is important both for the efficient utilisation of the public resources of the court and in the interests of fairness to the other party that appeals are pursued with reasonable diligence.  Delay and uncertainty of the present kind cannot be allowed to continue.  In the circumstances, it is appropriate that the appellant be put on terms to file and serve the appellant's case.  I will therefore order that:

   1.unless the appellant file and serve the appellant's case on or before 30 April 2010, the appeal do stand dismissed and the appellant pay the respondent's costs of the appeal to be taxed;

   2.the appellant pay the respondent's costs of the appearance today in any event; and

   3.the appellant have liberty to apply, on or before 27 April 2010, to vary those orders.

   If there are circumstances which the appellant considers warrant those orders being varied or set aside, it is incumbent upon the appellant to proceed promptly to bring those matters before the court.  The circumstances will need to be set out in an affidavit.