Wilks Holdings Pty Ltd v Cornish

[2001] WADC 78

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WILKS HOLDINGS PTY LTD & ANOR -v- CORNISH [2001] WADC 78

CORAM:   VIOL DCJ

HEARD:   9 MARCH 2001

DELIVERED          :   Delivered Extemporaneously on 9 MARCH 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 3556 of 1999

BETWEEN:   WILKS HOLDINGS PTY LTD

GORDON WILKS
Plaintiffs

AND

BARRIE ROBERT CORNISH
Defendant

Catchwords:

Practice and Procedure - Application for extension of time within which to appeal against decision of Registrar - Turns on own facts

Legislation:

Nil

Result:

Application granted

Representation:

Counsel:

Plaintiffs:     Mr W L Goodlet

Defendant:     Mr R K Malhotra

Solicitors:

Plaintiffs:     Unmack & Unmack

Defendant:     Malhotra & Associates

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

Nil

Case(s) also cited:

Nil

1. VIOL DCJ: This is an application by the plaintiffs for leave for an extension of time within which to lodge a notice of appeal against a decision of Registrar Kingsley on 21 September 2000; on that occasion he refused an application by the plaintiffs for consolidation of two actions.

2. The reasons why there are two actions have been explained by counsel and the reasons why the plaintiffs wish to appeal have also been made out and explained by Mr Goodlet, counsel for the plaintiffs.  One of the matters in the way of the granting of the extension, of course, is the delay which lies at the feet of the plaintiffs in taking any action in relation to the dismissal of their application.  There is a delay of some three and a half months.  That came about, it is said by the plaintiff (in Mr Wilks' affidavit sworn on 4 January 2001) because he had, in effect, become disappointed with the way in which the matter had been proceeding and decided to take some other means of dealing with the matter and did  not take his solicitor's advice at that point.  The plaintiff further swore that he was wrong in not taking the matter further and continued his desire to appeal against the decision of the Learned Registrar.

3. That has to be looked at from two points of view; firstly, the fact that the application to obtain judgment by the respondent was a considerable amount out of time and although it is said that the Registrar must have taken that into account it is difficult, on the papers, to say categorically that he did.  In any event the other matter, of course, is whether or not an application of this sort is granted is a matter of discretion.  There have been cases in which people have not taken the advice of their counsel and later changed their minds and been granted leave to appeal.  Also, it should be borne in mind that this is of course only an application for an extension of time within which to appeal, not the appeal itself.

4. Next, of course, I have to look at whether or not there are some merits in the matter.  I have had a chance to read some of the papers and listen to counsel.  It is not necessarily the case in my view that the plaintiffs do not have some merit in the present matter.  On the papers I have read, and having heard Mr Goodlet in particular, there appears to be an arguable case for the plaintiffs.

5. I am therefore of the view that the plaintiff should be granted leave; that is, an extension of time within which to appeal.  If that is granted, however, there should be strict conditions imposed, I will now hear counsel as to those matters.