TK v EH [No 2]

[2010] WASCA 139

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   TK -v- EH [No 2] [2010] WASCA 139

CORAM:   NEWNES JA

HEARD:   22 JULY 2010

DELIVERED          :   22 JULY 2010

FILE NO/S:   CACV 131 of 2009

BETWEEN:   TK

Appellant

AND

EH
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :NEWNES JA

Citation  :TK -v- EH [2010] WASCA 68

File No  :CACV 131 of 2009

Catchwords:

Practice and procedure - Failure to file and serve appellant's case - Appellant's case seven months out of time - Appeal dismissed

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr N W Marsh

Solicitors:

Appellant:     In person

Respondent:     Julienne Penny & Associates

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

TK v EH [2010] WASCA 68

1. NEWNES JA: This appeal comes before the court on a registrar's notice requiring the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to file the appellant's case.

2. Some of the relevant history of the matter was set out in a previous judgment when the matter was brought on for directions, again following the appellant's failure to file the appellant's case:  TK v EH [2010] WASCA 68. For convenience, I will repeat the relevant history up to that point, as set out there.

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 that the appeal had been listed for directions before a single judge on 19 April 2010 at 10.30 am.  The appellant did not appear at the hearing.

8. On that occasion, orders were made 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.

9. A copy of the reasons for judgment and the orders made were forwarded to the appellant by the Court of Appeal registry by letter dated 20 April 2010.  The appellant responded by letter dated 27 April 2010.  In that letter, the appellant said that she had recently changed address and had not received notification of the hearing on 19 April 2010.  She also said she had not received the letter from the court of 20 April 2010 until 24 April 2010, when it was delivered to her by a former neighbour.  The appellant sought to vary the orders made on 19 April 2010.

10. The matter was accordingly listed before me on 14 May 2010.  At that hearing the appellant said that she had not been able to review the relevant papers or to obtain legal advice and she sought a period of five weeks to do so.  With expressed reluctance, I allowed that further time.  I made an order that unless the appellant's case was filed and served on or before 11 June 2010, the appeal do stand dismissed and the appellant pay the respondent's costs of the appeal to be taxed.  I told the appellant that, absent something quite extraordinary, no further extensions of time were likely to be granted.

11. On 11 June 2010, the appellant sought to file the appellant's case 'as far as I have been able [to prepare it]'.  The document fell a long way short of the requirements of r 32(3) of the Court of Appeal Rules.  It did not, as required by r 32(3)(b), contain an outline of submissions, a draft chronology or a draft appeal book index.  In addition, the grounds of appeal did not comply with r 32(4) and were seriously defective.

12. On 25 June 2010, the Court of Appeal registry wrote to the appellant informing her that the document had not been accepted for filing because it was incomplete.  The appellant has not sought to file an appellant's case in any other form.

13. On 25 June 2010 the present notice was issued.  On one view it was unnecessary, the order of 14 May 2010 having the effect that the appeal stood dismissed.  But given the appellant's attempt on 11 June 2010 to file the incomplete appellant's case, the notice permitted any doubt or uncertainty about the effect of that order to be settled.

14. The appellant's case is now more than seven months out of time.  That is plainly unacceptable.  The appellant explained at the hearing that she has been attempting (and is continuing to attempt) to obtain legal assistance to enable her to complete the appellant's case but, despite her best endeavours, to date she has been unable to obtain such assistance.  It appears there is by no means any certainty that her continuing endeavours in that regard will be any more fruitful.

15. It can readily be accepted that the appellant is under a disadvantage in not having legal representation.  But the appellant has been granted every reasonable indulgence and at the time the order of 14 May 2010 was made the consequences of any failure to comply with it were made very plain to her.  It is clearly unfair to the respondent to have the appeal left hanging over him in this way.  In the circumstances, the interests of justice require that the appeal be brought to an end.  Accordingly, lest there be any uncertainty as to the effect of the order of 14 May 2010, I would order that the appeal be dismissed.  The appellant must pay the respondent's costs of the appeal to be taxed.