Wharton v The Queen [No 2]
[2015] WASCA 176
•2 SEPTEMBER 2015
WHARTON -v- THE QUEEN [No 2] [2015] WASCA 176
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 176 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:76/2014 | 17 AUGUST 2015 | |
| Coram: | McLURE P MAZZA JA BEECH J | 2/09/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN LYNNE WHARTON THE QUEEN |
Catchwords: | Criminal law and procedure Appeals Appellant failed to file appellant's case Springing order Extension of time for compliance Whether further extension of time should be granted Turns on own facts |
Legislation: | Crimes Act 1914 (Cth), s 20(1)(b) Criminal Appeals Act 2004 (WA), pt 3 Criminal Code (Cth), s 135.1(3) Rules of the Supreme Court 1971 (WA), O 3 r 5 Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 4(1), r 5, r 28, r 32, r 43 |
Case References: | CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90 Melville v East End Holdings Inc [2003] WASCA 133 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 Pearce v The Queen [2005] WASCA 74; (2005) 59 ATR 260 R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351 The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 Ward v Keet [No 3] [2010] WASC 71 Wharton v The Queen [2015] WASCA 133 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHARTON -v- THE QUEEN [No 2] [2015] WASCA 176 CORAM : McLURE P
- MAZZA JA
BEECH J
- CACR 77 of 2014
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 435 of 2013
Catchwords:
Criminal law and procedure - Appeals - Appellant failed to file appellant's case - Springing order - Extension of time for compliance - Whether further extension of time should be granted - Turns on own facts
Legislation:
Crimes Act 1914 (Cth), s 20(1)(b)
Criminal Appeals Act 2004 (WA), pt 3
Criminal Code (Cth), s 135.1(3)
Rules of the Supreme Court 1971 (WA), O 3 r 5
Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 4(1), r 5, r 28, r 32, r 43
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L Glenn
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90
Melville v East End Holdings Inc [2003] WASCA 133
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Pearce v The Queen [2005] WASCA 74; (2005) 59 ATR 260
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Ward v Keet [No 3] [2010] WASC 71
Wharton v The Queen [2015] WASCA 133
1 REASONS OF THE COURT: Before the court is the appellant's application filed on 20 July 2015 to extend the time to comply with a springing order made by a single judge of this court.
Background
2 The application is to be decided against this factual background.
3 On 2 April 2014, the appellant was convicted after a trial before a judge and jury in the District Court of three counts of causing the preparation and lodgement with the Australian Taxation Office of trust tax returns which contained false information, with the intention of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(3) of the Criminal Code (Cth). On 4 April 2014, the appellant was sentenced to 3 years' imprisonment with respect to each charge, to be served concurrently. Thus, the total effective sentence was 3 years' imprisonment. His Honour ordered that the sentence commence on 2 April 2014 and that, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant be released after serving 2 years of the sentence upon him entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months.
4 On 24 April 2014, the appellant filed notices of appeal with respect to both conviction (CACR 76 of 2014) and sentence (CACR 77 of 2014). These notices were filed within time. The appellant listed 13 proposed grounds of appeal in his notice of appeal against conviction and four proposed grounds of appeal in his notice of appeal against sentence.
5 In substance, the only step that the appellant has taken in each of his appeals is to file the notices of appeal. The next step to be taken in each appeal is to file and serve an appellant's case. An appellant's case is an integral step in the appeal process as it contains the appellant's grounds of appeal and the written submissions in support of those grounds.
6 The appellant's cases should have been filed and served on or before 19 June 2014. However in both appeals, the appellant has failed to file an appellant's case. Every opportunity has been given to him to do so. In total, this court has granted the appellant seven extensions of time to file and serve his appellant's cases. His default has persisted for some 14 months.
7 On 22 January 2015, a springing order was made in each appeal in these terms:
1. The time for the appellant to file and serve the appellant's case be extended to 4 pm on Tuesday 28 April 2015, failing which the appeal will stand dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005.
8 Three extensions of time were granted to the appellant to comply with this order. We will refer shortly to the circumstances in which these extensions were granted. The final extension was granted on 24 June 2015, extending the time for compliance to 20 July 2015.
The application
9 On 20 July 2015, the appellant filed another application to extend time to comply with the springing order. It is this application which is to be determined by this court. The application reads:
The applicant applies for - hearing in this matter [an] application for [an] extension of time to file and serve [an] appellant's case for appeals of conviction and sentence - refer attached [sic].
10 The attachment referred to is the appellant's affidavit in support of the application sworn on 20 July 2015. On 17 August 2015, the application was heard by this court. On the same day, the appellant filed a second affidavit in support of his application, sworn by him on 14 August 2015. On 24 August 2015, after the hearing of the application and without leave of the court, the appellant sought to file a third affidavit in support of the application, signed but not sworn by him on 24 August 2015.
11 Nowhere in his application or supporting affidavits does the appellant specify when he proposes to file his appellant's cases. The court was none the wiser in this respect after hearing the appellant's oral submissions at the hearing of the application.
The appellant
12 The appellant is an apparently intelligent man. He is a qualified chartered accountant who owned and operated his own accountancy practice. He claimed particular knowledge and expertise in taxation. Based on his dealings with this court, he is literate and articulate.
13 The appellant is not unfamiliar with criminal law and its processes, including the appellate process.
14 On 1 July 2004, the appellant and others were convicted in the Supreme Court of conspiring to defraud the Commonwealth. The appellant was subsequently sentenced to 5 years' imprisonment with a conditional release order after 18 months. The appellant appealed against both his conviction and sentence. The appeal against conviction was dismissed and the application for leave to appeal against sentence refused: Pearce v The Queen [2005] WASCA 74; (2005) 59 ATR 260.
15 In November 2010, the appellant pleaded guilty in the County Court of Victoria to three counts of giving evidence to the Australian Crime Commission which was, to his knowledge, false or misleading in a material particular. On 29 November 2010, he was sentenced by Judge Gaynor to 6 months' imprisonment, to be released forthwith upon entering into a recognisance in the sum of $1,500 to be of good behaviour for 18 months.
The appeals' procedural history
16 For a time after the appellant filed his appeal notices, he was represented by solicitors.1 Those solicitors sought and, with the consent of the respondent, were granted two extensions of time to file the appellant's cases. The second of those extensions, granted on 13 August 2014, gave the appellant until 5 September 2014 to file the documents.
17 On 5 September 2014, the appellant filed notices of self-representation. He has been self-represented ever since. The appellant then sought a further extension of time. In an affidavit sworn on 30 September 2014, the appellant said that his grant of legal aid had been terminated on 12 September 2014, and that he had sought a review of that decision. He deposed:
Notwithstanding this position with Legal Aid I am continuing with my own preparation of the Appellants' [sic] appeal case[s] and am pursuing other avenues to finance legal representation and advice in this matter.
18 The appellant then explained the practical difficulties that he faced in prison in researching and preparing his appellant's cases. He also said that he was pursuing avenues of inquiry which might lead to the discovery of fresh evidence upon which his convictions might be set aside. The appellant concluded the affidavit by seeking an extension of time to late January 2015 'to file the Appellants' [sic] case[s] and allow time for its preparation and for me to obtain legal representation'.
19 On 3 October 2014, the appellant was granted a further extension of time to file his appellant's cases to 15 December 2014. The appellant was told that this deadline was a serious one, and that the court fully expected that the appellant's cases would be filed by that time. The appellant confirmed that he understood the position.2 The appellant failed to comply with the orders made on 3 October 2014. Consequently, the appeals were listed on 22 January 2015 for further directions.
20 By affidavit sworn on 20 January 2015, a solicitor employed by the respondent, Fleur Marie Allen, annexed correspondence between the appellant and the respondent for the period between 23 September 2014 and 13 January 2015. In that correspondence, the appellant sought to obtain from the respondent a large amount of material which he wished to examine. This material was outside the scope of material generally required for the purposes of an appeal. It appears from the affidavit of Ms Allen that some of that material was provided to the appellant, but some was not upon the basis that it was irrelevant.
21 On 21 January 2015, the appellant sent a signed, but unsworn, affidavit to the court by facsimile transmission. By that document, he sought to explain why he had not complied with the order made on 3 October 2014. It is unnecessary to set out in detail his explanation. It is sufficient to observe that it did not constitute a satisfactory justification for his non-compliance. The appellant concluded the affidavit by seeking a further extension of time to late April 2015 to file his appellant's cases and obtain legal representation.
22 On 22 January 2015, the springing order referred to earlier in these reasons was made. It is clear from the transcript of proceedings on that day that the appellant understood both his obligations and the effect of a springing order.3 No review of that order was sought.
23 On 17 and 22 April 2015, the appellant attempted to file applications for an extension of time and for orders relating to the disclosure and provision of documents by the respondent. These applications were not accepted for filing because they were not supported by an affidavit. Nevertheless, a directions hearing was listed at short notice on the court's own motion, having regard to the fact that the order would self-execute on 28 April 2015. This hearing was listed on 23 April 2015.
24 At that hearing, the appellant explained to the court that he had not filed his appellant's cases because he believed that he had an entitlement to documents that he had requested from the Director of Public Prosecutions (Cth) and which had not been provided to him.4
25 In order to resolve the issue of whether the respondent was obliged to provide the documents sought by the appellant, the proceedings were adjourned to a special directions hearing on 15 May 2015. To preserve the appellant's position in the interim, an extension of time was granted to 21 May 2015.
26 On 15 May 2015, it was decided that the documents sought by the appellant were not relevant to any of his proposed grounds of appeal against conviction. It was found that, in truth, the appellant had attempted to embark upon a fishing expedition in the hope that something would be discovered in the requested documents that would somehow favour him: Wharton v The Queen [2015] WASCA 133 [13]. Mazza JA outlined the appellant's position as follows:
The appellant has been quite candid as to why he requires the documents in the list. He is exploring a number of lines of inquiry which he hopes will lead to additional grounds of appeal and which will, ultimately, lead to the convictions being set aside. This morning, he accepted in substance that what he was doing was embarking upon a fishing expedition; that some of what he was doing was related to the credibility of the witnesses in his trial; and, that some of the documents were peripheral to the issues of credibility that I have just referred to [8].
27 He went on to state:
Let me return to the real issue here - that is, the appellant's failure to file his appellant's cases. The appellant was convicted after trial by a District Court jury of three counts of preparing and lodging tax returns which contained false information with the dishonest intention of causing a loss to the Commonwealth. On 2 April 2014, he was sentenced to a total effective sentence of 3 years' imprisonment with a recognisance release order after 2 years.
The appeals were filed promptly on 24 April 2014. The appellant's cases are now nearly one year overdue. Two consent extensions were given, but were not complied with. I made a springing order requiring the filing and service of appellant's cases by 4 pm on 28 April 2015. As I have said, I granted an extension to 21 May 2015.
It seems to me that there is no excuse whatsoever for the appellant's failure to file an appellant's case in his appeal against sentence. Nor, in my opinion, is there any real excuse for the appellant's failure to file an appellant's case in the appeal against conviction.
As I have explained on other occasions in this case, there is a clear public interest for appeals to be resolved expeditiously. The delays in these cases are gross. By the time these matters are heard, the custodial part of the appellant's sentence will largely have been served. The appellant does not complain about this and, in any event, it is entirely his fault if that is how it turns out.
Making due allowances for the fact that the appellant is acting in person and is incarcerated, I can see no reason why the appellant's cases should not be filed promptly. Indeed, they should have been filed months ago. Despite this, I am prepared to give the appellant one more chance to file his appellant's cases. This is done on the understanding that there will not be, failing some exceptional reason, any further extension [14] - [18].
28 A further extension of time to comply with the springing order to 26 June 2015 was granted. It was made clear that this extension provided the appellant with one last chance, and that, failing some exceptional reason, no further extension would be granted.
29 Some days prior to 26 June 2015, the appellant attempted to file yet another application to extend the time for him to comply with the order made on 15 May 2015. The application was not accepted for filing, but the court, on its own motion, listed the proceedings for directions on 24 June 2015.
30 At the directions hearing on 24 June 2015, the appellant explained that, with respect to his appeal against sentence, he had sought from the respondent some information concerning a case he identified as R v NJR. We assume the appellant was referring to R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. He also indicated that he wished to file his appellant's case in his sentence appeal first and later to file his appellant's case in his conviction appeal.5 The appellant was told that the appeals would be heard together; his position was very serious; and that he was in danger of having his appeals dismissed by virtue of the springing order.6 The appellant explained that he would not be able to file his appellant's cases by 26 June 2015 because computing facilities were not available to him. The appellant was then given permission to handwrite his appellant's cases.7 The appellant sought an extension of '14 days in relation to sentence and then a further 14 days in relation to conviction' to file his appellant's cases in each appeal.8
31 Mazza JA then ordered an extension of time to 20 July 2015. The appellant was told:
Save something very exceptional, if you don't get your appellant's cases in by that day then … the springing orders will take effect and your appeals will be, in effect, dismissed. So you understand that, don't you?9
32 The appellant replied in the affirmative. To emphasise the position, Mazza JA said:
Just … understand that there will be no further delay. And you can't come to this court and say, 'I need some more information. I need the [respondent] to give me more information'. Now is that clear to you?
THE APPELLANT: Yes, your Honour.10
The appellant's affidavits in support on the application
33 We now turn to the appellant's affidavits filed in support of the application currently before the court.
The appellant's affidavit of 20 July 2015
34 In his affidavit sworn on 20 July 2015, the appellant deposed that he had not filed his appellant's cases because:
(a) he required 'further relevant…legal materials' [2] - [4];
(b) 'computer related issues persist' [5];
(c) he had difficulties in getting uninterrupted preparation time given his daily regime in prison [7]; and
(d) despite having been told that he could handwrite his appellant's cases, he did not wish to do so because he regarded it 'as prejudicial to [his] appeals' [6].
35 As to his appeal against sentence, the appellant foreshadowed applications 'to adduce further evidence', including 'further evidence from the witness Mr Hutchins' [15]. He also foreshadowed further grounds of appeal 'involving s 109 and s 117 of the Constitution' [16], saying that he would need 'legal assistance to do so properly' [8]. He referred to his apparent inability to obtain a copy of R v MJR [66].
36 Between [17] and [65], he set out arguments in support of some of his proposed grounds of appeal. However, as he later explained in his affidavit of 14 August 2015, these were 'a preliminary outline of submissions to be adopted in the appellant's case on conviction covering some of the grounds in the appeal notice and also new grounds to be further articulated hopefully with legal assistance'. At no time has the appellant proposed that any part of what is in his 20 July 2015 affidavit should stand as his appellant's case, or as part of his appellant's case.
37 He stated that, now that he 'had some preliminary submissions drafted, [he] will go back to Legal Aid and challenge their decision to withdraw legal aid' [8].
The appellant's affidavit of 14 August 2015
38 Further to the matters already referred to, in his affidavit sworn 14 August 2015, the appellant stated that:
(a) on 20 July 2015, he was transferred from Wooroloo Prison Farm to Karnet Prison Farm for reasons associated with his security [4] - [5];
(b) this transfer, and issues surrounding it, had further delayed his preparation of the appellant's cases [6]; and
(c) he wished to request the Legal Aid Commission to 'further review' its decision to refuse him legal aid [7].
The appellant's affidavit of 24 August 2015
39 The appellant's signed, but unsworn, affidavit of 24 August 2015 adds nothing of substance to the other affidavits. The appellant deposes that:
(a) he was transferred back to Wooroloo Prison Farm [3]; and
(b) he has not yet been provided with the resources to write to the Legal Aid Commission or 'progress' the preparation of his appellant's cases [5] - [6].
The statutory framework
40 An appeal from a superior court such as the District Court must be commenced and conducted in accordance with pt 3 of the Criminal Appeals Act2004 (WA) and the rules of court: s 28(1) of the Criminal Appeals Act.
41 The rules which apply to any matter or cause over which this court has jurisdiction are the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules): r 3 (1) and r 4(1) of the Rules. The Rules must be read with the Rules of the Supreme Court 1971 (WA) (the RSC): r 5(1) of the Rules. Rule 5(4) of the Rules provides:
The RSC Order 3, other than rules 2(2) and 5(3), applies for the purposes of these rules.
42 Relevantly to this appeal, O 3 r 5(1) and r 5(2) of the RSC provide:
5. Extending and abridging time
(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.
43 Subject to the court's power to extend time, an appeal under pt 3 of the Criminal Appeals Act must be commenced within 21 days after the date of the decision or judgment: s 28(3) of the Criminal Appeals Act. Where a person is sentenced on a date which is not the date of conviction, time under s 28(3) runs from the date of sentencing: s 28(4) of the Criminal Appeals Act.
44 A criminal appeal is commenced by the filing and service of an appeal notice, which includes a statement of proposed grounds of appeal: r 28(1) of the Rules; Form 1. Where applicable, the appeal notice is to be filed with an application for an extension of time within which to appeal, together with a supporting affidavit deposing to why the appeal was not commenced within time: r 28(2) of the Rules.
45 After an appeal notice is filed, an appellant must file an appellant's case: r 32(1) of the Rules; Form 7. An appellant's case in a criminal appeal comprises a number of documents, including the grounds of appeal, the appellant's submissions, legal authorities and orders sought: r 32(3)(b) of the Rules. That document must be filed 'within 35 days after the date on which the appeal notice is filed': r 32(2)(b) of the Rules. However, this court's practice in criminal appeals is to allow an appellant's case to be filed within 56 days after the filing of the appeal notice. This is to allow sufficient time for an appellant who requires legal aid or other assistance to prepare his or her appellant's case.
46 The jurisdiction of a single judge of this court under the Rules is set out in r 43. Relevantly, r 43(2)(g) gives a single judge jurisdiction:
to dismiss the appeal if -
(i) none of the grounds of appeal has a reasonable prospect of succeeding; or
(ii) the appellant has not obeyed these rules or any order made under them.
47 Rule 43(2)(l) of the Rules gives a single judge jurisdiction:
to make any order that is necessary or convenient to make as a result of an order made under any of the above paragraphs.
Power to extend time to comply with a springing order
48 In FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, the High Court considered, in the context of pt 2 r 3 of the Supreme Court Rules 1970 (NSW) (which rules do not materially differ to O 3 r 5(1) and r 5(2) of the RSC) whether a court has the power to extend time for compliance of a springing order even though the time for compliance has passed. The court (Wilson J, with whom Brennan, Deane & Dawson JJ agreed; Gaudron J agreeing in separate reasons) unanimously held that a court has such a power. Wilson J characterised the relevant rule as:
[A] remedial provision which confers on a court a broad power to relieve against injustice (283).
49 In Melville v East End Holdings Inc [2003] WASCA 133, the Full Court held that the rule enunciated in FAI applied to O 3 r 5 of the RSC.
50 The matters to which a court will have regard when considering whether to extend the time for compliance with a springing order were set out by Master Newnes (as his Honour then was) in MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 at [38] - [41], [46] - [51] and [54] - [57], as follows:
It is clear, and it was not in dispute, that a court at first instance has the power to extend time under a self-executing order which has 'sprung': FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.
It is axiomatic, however, that peremptory orders are made to be obeyed and they are generally only made where (as in this case) the party in default has already failed to comply with the requirements of the rules of court and with an order of the Court. As Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at 1676, an "unless order" is by its nature intended to mark the end of the line for a party who has failed to comply with it and any previous orders of the Court.
It is, moreover, plainly important to the administration of justice that orders of the Court are complied with. Browne-Wilkinson VC observed in Re Jokai Tea Holdings Ltd (supra), that obedience to orders of the Court is the foundation on which its authority is founded. It follows that any approach which tends to encourage the development of a culture of non-compliance, where orders, even peremptory orders, of the Court are not given the attention and priority they require, must inevitably tend to undermine that foundation.
Accordingly, the power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored: Samuels v Linzi Dresses Ltd [1981] QB 115, per Roskill LJ at 126 - 127.
…
I do not, however, understand Re Jokai Tea Holdings Ltd (supra) to be laying down a principle that a party who fails to comply with a peremptory order is entitled to an extension of time unless the failure was intentional and contumelious. The Vice-Chancellor's judgment makes it clear that he considered a party seeking to avoid a springing order must establish both that there was no intention to ignore or flout the order and that the failure to comply with it was due to circumstances outside the party's control. As Leggatt LJ said in Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32 at 37, having set out the passage I have quoted above:
It is to be noted that the Vice-Chancellor was specifically expecting that a defaulter would only escape the consequences of judgment given against him if he could demonstrate both that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances.
In that case Leggatt LJ (with whom Neill LJ agreed), having canvassed a number of authorities, continued (at 39):
… it is important that breach of [unless] orders should not be incautiously condoned or overlooked. Otherwise the notion that the Court will readily allow further time will encourage those who have not troubled to comply with its peremptory orders to apply to set aside judgments in default. Peremptory orders are made to be obeyed.
Leggatt LJ then referred to the authorities he had earlier canvassed and said:
Those approaches indicate the need for a defaulter, if he is to escape the consequences of failure to comply with a peremptory order, to show that in the circumstances the relevant breach was excusable if not unavoidable.
In Hytec Information Systems Ltd v Coventry City Council (supra), having considered a number of authorities, including Re Jokai Tea Holdings Ltd (supra) and Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd (supra), Ward LJ (with whom Auld LJ and Lord Woolf MR agreed) concluded (at 1675) that where there has been non-compliance with a peremptory order "a sufficient exoneration will almost inevitably require that [the defaulting party] satisfies the court that something beyond his control has caused his failure to comply with the order."
Of course, on an application of this nature the exercise of the discretion must in the end depend upon all the circumstances of the case, without being limited by conditions or guidelines articulated in other cases, and there must always remain sufficient flexibility to make reasonable allowance for human error. And whilst it is important that "legal business be conducted efficiently": Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 32 FCR 379 at 387, that is not an end in itself. The ultimate objective must be to do justice: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155.
But given the nature of a springing order, the starting point must be that it is for the defaulting party to establish why it should be permitted to continue with the litigation despite its non-compliance. In my view, it will generally not be sufficient simply to show that the non-compliance was not intentional and contumelious. The authority of the Court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place.
…
The failure to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity offered to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. That will generally mean that the litigant must bear the consequences of a failure to comply with a springing order, whether the failure was due to the litigant or its solicitor.
The matters to which I have referred above provide the backdrop, in my view, against which the specific matters to which, in any particular case, the Court is to have regard in the exercise of its discretion are to be considered. And while no hard and fast rules can be laid down as to the matters to which the Court should have regard, in my view in the exercise of its discretion the Court will normally have regard to at least the following matters:
(1) the circumstances in which the springing order came to be made;
(2) the reason for non-compliance with the springing order;
(3) the prejudice to the defaulting party if the time were not extended; and
(4) the prejudice to the other party if the time were extended.
It will also normally be a relevant considerationwhether or not the defaulting party has a reasonably arguable case on the merits - there being no point in resuscitating a case that is devoid of merit - but, on the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to act to insulate it from the consequences of a failure to comply with a peremptory order of the Court.
But as I have said, in the end the matters that are to be weighed in the balance, and the weight to be given to each, cannot be stated definitively but must depend upon the circumstances of the particular case.
51 See also Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90 [18]; Ward v Keet [No 3] [2010] WASC 71 [27]; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351 [3] - [6] and CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [36].
52 We see no reason why these general principles should not be applied to criminal appeals. In doing so, this court will pay due regard to the difficulties that often face self-represented appellants in custody and the serious consequences that potentially flow to an appellant's liberty if the court refuses to grant such applications. It must also be recognised that there is a strong public interest in the timely disposition of criminal appeals and that, in many cases, there is a human cost to victims and/or their families as a result of undue delay: see The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [36].
Disposition
53 The springing order was made after the appeals had been on foot for almost eight months, and only after repeated default by the appellant of the Rules and court orders.
54 When the springing order was made, the appellant was given a long period of time within which to comply. Instead of preparing his appellant's cases, he chose to embark upon a wholly unmeritorious 'fishing expedition'. When given an extension of time to comply with the spring order on 15 May 2015, the consequences of a further default could not have been made clearer to him.
55 The appellant offers various reasons for his failure to file his appellant's cases, including that:
(a) He is unrepresented and in custody.
(b) His case is complex.
(c) Research and word processing facilities in prison are inadequate and the prison authorities have not provided him with proper assistance.
(d) He has been moved between various prisons, causing him stress.
(e) He has lost computer disks on which some of his work had been stored.
(f) He has, on occasions, been subject to harassment and threats by other prisoners.
56 As was said earlier, due allowance must be given to the difficulties that face unrepresented appellants in custody. However, the long experience of this court is that those who seriously wish to pursue appeals against conviction and sentence manage to comply with the Rules and court orders and do prepare appellant's cases. Many such persons do not have the intelligence or literacy skills which this appellant displays. None of the explanations given by the appellant, either individually or in combination, satisfactorily explain the appellant's continuous and lengthy failure to comply with the springing order and the extensions which have already been granted to him. The appellant has had more than enough time and been given more than enough opportunity to prepare his appellant's cases.
57 The starting point is that this is an application to extend time for compliance with a springing order. Maintenance of the authority of the court requires that weight is given to the need to comply with orders of the court. By its nature, a springing order is intended to be the end of the line for a party who has failed to comply with orders of the court and maintenance of the authority of the court. The proper administration of justice requires that the springing order generally be, as is its evident object, the last opportunity for the party in default.
58 Often, if not generally, when the deadline for compliance with a springing order has passed, and the party in default seeks an extension, that party provides the document the subject of the default in support of the application for an extension of time. That did not occur in this case. By the time of the hearing of this application, four weeks had elapsed since the deadline for filing the appellant's cases. Notwithstanding that, the appellant had not filed his appellant's cases by this time, and he did not give any indication at the hearing as to when he proposed to do so. In effect, he sought an open-ended extension.
59 The court has made it plain to the appellant that he was obliged to file his appellant's cases, failing which his appeals would be dismissed and that there must not be any delay arising from attempts to pursue further investigations or the obtaining of further information or material. By his conduct, the appellant has steadfastly refused to accept that position. He continues to seek an open-ended extension of time so as, among other things, to enable him to explore various possible grounds of appeal and the possibility of obtaining legal assistance. The appellant has not suggested or requested that what is in his affidavit of 20 July 2015 (or parts of it) could stand as his appellant's case. There is nothing in what the appellant has put before the court to indicate, much less establish, that the appellant has made a genuine attempt to work with the material available to him and prepare and finalise his appellant's cases.
60 In our opinion, the appellant has acted in a contumelious manner. He has ignored the Rules and court orders. His behaviour shows that he has no real regard for the time limits which have been imposed upon him. He wishes to march to the beat of his own drum. Even in his most recent affidavits and in his oral submissions to this court, he has not given any indication whatever of when he will file his appellant's cases. In the circumstances, the grant of the open-ended extension sought by the appellant would not be conducive to the maintenance of the authority of the court and its orders.
61 In his 20 July 2015 affidavit and oral submissions to this court, the appellant asserted that he has the right to put his case. Further, he asserts that he has strong grounds of appeal. Any 'right' that he has must be exercised subject to the Rules, court orders and procedures which apply. After the appellant's case is filed, this court exercises its duty to determine whether any proposed ground of appeal has the necessary merit to justify a grant of leave to appeal. Based on the material provided to this court, there is no substance in the appellant's assertion that his proposed grounds of appeal, both in respect of conviction and sentence, are 'strong'. In any event, the appellant cannot now be insulated from the consequences of his contumelious, persistent and inadequately explained default.
62 Finally, given the appellant's behaviour thus far, there can be no confidence whatever that, if an extension of time was to be granted, the appellant would comply with it.
63 In these circumstances, we have been wholly unpersuaded that this court should exercise its discretion to further extend the time for the appellant to file his appellant's cases in these appeals. We would dismiss the appellant's application.
1 A notice of acting was filed by the appellant's solicitors on 29 May 2014.
2 Ts 9-10, 3 October 2014.
3 Ts 8-9, 22 January 2015.
4 Ts 4, 23 April 2015.
5 Ts 33, 24 June 2015.
6 Ts 34, 24 June 2015.
7 Ts 36, 24 June 2015.
8 Ts 37, 24 June 2015.
9 Ts 37, 24 June 2015.
10 Ts 38, 24 June 2015.
10
16
5