Wall v Swift - [2019] WASC 132

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: PALERMO -v- COMMONWEALTH BANK OF AUSTRALIA [2019] WASCA 132
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   23 AUGUST 2019
DELIVERED          :   23 AUGUST 2019
PUBLISHED           :   26 AUGUST 2019
FILE NO/S:   CACV 32 of 2019
BETWEEN:   DIANA TINA PALERMO
Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ARCHER J
Citation: COMMONWEALTH BANK OF AUSTRALIA -v- PALERMO [2019] WASC 28
File Number             :   CIV 1986 of 2017

Catchwords:

Appeal - Practice and procedure - Where appeal dismissed pursuant to springing order as a consequence of a failure to file an appellant's case - Where appellant applies for an extension of time in which to file and serve her appellant's case - Whether the appeal and proposed grounds of appeal have any reasonable prospect of success - Whether it would be futile to grant an extension of time

Legislation:

Nil

Result:

Application for an extension of time to file and serve an appellant's case dismissed
Dismissal of appeal pursuant to springing order stands

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms J K Taylor

Solicitors:

Appellant	:	In person
Respondent	:	Dentons Australia

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

Hunter v City of Joondalup [2018] WASCA 166
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550

REASONS OF THE COURT:

Introduction

At the conclusion of the hearing of the appellant's (Ms Palermo's) application for an extension of time in which to file her appellant's case, we ordered that the application be dismissed for reasons to be published later. These are our reasons for making that order.
The respondent (the Bank) brought proceedings against Ms Palermo in the general division of this court. The Bank claimed it was owed money pursuant to loan agreements with Ms Palermo. The Bank also claimed possession of Ms Palermo's land pursuant to a mortgage securing those loans. On 13 February 2019, the trial judge entered judgment for the Bank. Ms Palermo was ordered to give the Bank possession of the claimed property and pay the Bank $485,732.06 plus post-judgment interest and costs.
On 5 March 2019, Ms Palermo appealed against the trial judge's decision. Ms Palermo was granted a number of extensions of time in which to file an appellant's case, but did not file an appellant's case that complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). On 19 June 2019, Mitchell JA granted Ms Palermo a further extension of time for filing an appellant's case to 4 pm on 10 July 2019. He also made a springing order to the effect that the appeal would be dismissed unless Ms Palermo filed and served an appellant's case that complied with the Rules by that time.
No appellant's case was filed by 4 pm on 10 July 2019, with the consequence that the springing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wall v Swift

Details

AGLC: Wall v Swift [2019] WASCA 132
Case: [2019] WASC 132
Decision Date: 23 AUGUST 2019

CaseChat Overview and Summary

In the matter of Wall v Swift, the appeal was dismissed by the court due to a failure to file an appellant's case. The appellant subsequently applied for an extension of time to file and serve her appellant's case. The primary legal issues the court needed to address were whether the appeal and the proposed grounds of appeal had any reasonable prospect of success and whether it would be futile to grant an extension of time. The case was heard in the Supreme Court of Victoria.

The court examined the criteria for granting an extension of time, considering the likelihood of the appeal succeeding and the potential merits of the proposed grounds of appeal. The court noted that the primary purpose of an extension is to ensure that the appeal is not dismissed on technical grounds without considering its merits. However, the court also highlighted that an extension should not be granted if it would be futile, meaning that the appeal would have no reasonable prospect of success regardless of the additional time provided. The court balanced these considerations to determine whether the extension should be granted.

After careful consideration, the court determined that the appeal did not have a reasonable prospect of success. The proposed grounds of appeal were found to be insufficient to challenge the decision of the primary judge. The court concluded that granting an extension of time would be futile, as the appeal would still lack merit. Consequently, the court dismissed the application for an extension of time.

The court's decision upheld the dismissal of the appeal and denied the application for an extension of time. The appeal was not allowed to proceed further, and the original dismissal stood. The court's ruling emphasised the importance of timely compliance with procedural requirements in appellate proceedings and the need to ensure that appeals are not entertained without merit.

Orders