Wilczewski v RetireInvest Pty Ltd

[2009] WASCA 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WILCZEWSKI -v- RETIREINVEST PTY LTD [2009] WASCA 130

CORAM:   BUSS JA

NEWNES JA

HEARD:   24 JULY 2009

DELIVERED          :   24 JULY 2009

FILE NO/S:   CACV 49 of 2009

BETWEEN:   KARINA WILCZEWSKI

Appellant

AND

RETIREINVEST PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAVRIANOU DCJ

File No  :CIV 201 of 2008

Catchwords:

Appeal - Failure by appellant to comply with rules of court - Springing order made

Legislation:

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

Result:

Springing order made

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     Mr D J Pratt

Solicitors:

Appellant:     No appearance

Respondent:     Jackson McDonald

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

Nil

1. BUSS JA: By an order made 14 July 2009, the Court of Appeal Registrar has listed this appeal before the court today for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA). By that provision, relevantly, the court has jurisdiction to dismiss an appeal if the appellant has not obeyed the Rules or any order made under them.

2. The appellant has not appeared today either in person or by counsel.

3. The appeal was commenced on 24 April 2009 and the appellant's case was required to be filed by 29 May 2009.  It was not filed by the due date, even though on 28 April 2009 a letter was sent by the court to the appellant referring to the Court of Appeal Rules and explaining that the appellant's case was required to be filed by 29 May 2009.

4. By letter dated 8 June 2009 from the court to the appellant, the court noted that she had not filed the appellant's case by the due date.  It appears that the Registry staff did not receive any communication from the appellant in relation to that letter.  At some stage, however, the appellant did attend at the Court of Appeal office and produced the submissions that had been filed by her or on her behalf in the District Court proceedings from which the appeal is brought.

5. On 22 June 2009, the court sent the appellant a notice of a hearing before the Registrar on 14 July 2009 in relation to the appeal.

6. The appellant did not attend the hearing on 14 July 2009, but she did telephone the Registrar's Associate shortly before the hearing to say that she was too distressed to attend.

7. On 15 July 2009, the appellant attended a conference before the Registrar.

8. The appellant's case has still not been filed. 

9. I am satisfied that there is no reasonable excuse for the appellant's ongoing failure to file the appellant's case.  I would not dismiss the appeal today, but it is appropriate, in the circumstances, that a springing order be made.  Accordingly, I would order that the appeal be dismissed and the appellant pay the respondent's costs of the appeal to be taxed, unless the appellant's case is filed and served by 4.00 pm on 7 August 2009.

10. NEWNES JA:  I agree with Buss JA.