Webster v Rowe

[2009] WASCA 240

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WEBSTER -v- ROWE [2009] WASCA 240

CORAM:   PULLIN JA

NEWNES JA

HEARD:   9 DECEMBER 2009

DELIVERED          :   9 DECEMBER 2009

FILE NO/S:   CACV 33 of 2009

BETWEEN:   ANNETTE LOUISE WEBSTER

Appellant

AND

KENNETH JAMES ROWE
Respondent

ON APPEAL FROM:

Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA

Coram  :PENNY J

File No  :PTW 2947 of 2004

Catchwords:

Appeals - Practice and procedure - Non­compliance with Rules - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Nil

1. PULLIN JA:  The appeal has been called on today as a result of an order made by the registrar on 28 October 2009 which reads:

   The appellant attend before the Court of Appeal on 9 December 2009 at 10.30 am to show cause why the appeal should not be dismissed for failure to comply with the rules.

2. The background to this matter is as follows:  on 26 February 2009 the orders under appeal were made by Justice Penny in the Family Court of Western Australia.  The appellant had 21 days in which to appeal and outside that 21 day period, on 26 March 2009, the appellant via her solicitors filed an appeal notice and an application for an extension of time.

3. On 4 May 2009 a letter was sent by the Court of Appeal office to the appellant's solicitors informing the appellant that the appellant's case had yet to be filed pursuant to r 32 of the rules.  Rule 32(2)(b) provides that the appellant's case must be filed within 35 days after the date on which the appeal notice is filed.  So the appellant's case was due to be filed and served by about the end of April 2009.

4. On 10 May 2009 a letter from the appellant's lawyer was received by the Court of Appeal informing the court that the lawyer would no longer be representing the appellant.  On 13 May 2009 a letter was sent from the Court of Appeal office informing the lawyer that the lawyer would still be continuing to act for the appellant unless r 24 of the rules had been complied with.

5. On 22 June 2009 a letter was sent from the Court of Appeal office to the appellant personally, telling her that the lawyer was intending to seek leave from the court to cease to act and informing the appellant that if she wished to continue with the appeal there would have to be compliance with r 25 which required either the appellant personally to file a notice that she was representing herself or for a new lawyer to file a notice of acting.

6. On 29 July 2009 there was a directions hearing requiring the lawyer for the appellant to file and serve an application for leave to cease to act, and on 12 August 2009 such an application was made, supported by an affidavit.  On 21 August 2009 a court order was made by the registrar that the lawyer cease to be the lawyer acting, upon a copy of the order being served on the appellant, and that order was served on 21 August 2009.

1. On 25 September 2009 a letter was sent from the Court of Appeal office informing the appellant that if she wished to continue with the appeal she had to file a notice of self-representation or have a new lawyer file a notice.  No notice was filed of any kind.  On 12 October 2009 a letter was sent from the Court of Appeal office informing the appellant of the need for the notice just referred to, and no response was received to that letter.

2. So the position has now been reached where we are over seven months from the date when the rules required the appellant's case to be filed, and that has not happened.  As a result, on 28 October 2009 the registrar made the order that I referred to at the beginning of these reasons, requiring the appellant to show cause why the appeal should not be dismissed for failure to comply with the rules. 

3. Rule 42(2)(g) authorises the court to dismiss the appeal if the appellant has not obeyed the rules.  The appellant has not obeyed r 32 which obliged the appellant to file the appellant's case, and as a result and in view of the history referred to, the appeal should be dismissed and I would make that order.

4. NEWNES JA:  I agree with Pullin JA.