Wride v Werner

Case [2004] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Civil)

WRIDE v WERNER

Judgment of The Honourable Justice White

19 July 2004

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

JUDGMENT AS TO COMPETENCY OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

JURISDICTION - CONCURRENT ACTIONS IN FEDERAL COURT AND STATE SUPREME COURT - ABUSE OF PROCESS - APPROPRIATE ORDER

Application for extension of time in which to lodge and prepare appeal books - Application to have appeal dismissed or struck out as incompetent - Appellant failed to file notice of appeal complying with rules - Power of single judge to determine application for extension of time to appeal to Full Court - Power of single judge to determine competence of appeal - Proceedings instituted concurrent in Federal Court - Appeal to Full Federal Court pending - Same defendants and subject matter - Effect of unsatisfied costs order from previous proceedings - Appropriate order - Appeal struck out as incompetent.

Limitations of Actions Act 1936 (SA) s 48; Supreme Court Rules r 46A, r 95, r 97, r 106; Federal Court of Australia Act 1976 (SA) s 32; , referred to.
Miss v Rothmore Farms Pty Ltd (2002) 221 LSJS 306; Dagenham v Shanks (2003) 227 LSJS 70; Le Poidevin Industries Pty Ltd v Mid North Animal and Plant Control Board (Olsson J, 13 November 1991, Jud No 3122, Unreport; Steamship Company of New Zealand Ltd v The Caradale (1937) 56 CLR 277; Moore v Inglis (1976) 50 ALJR 589; Henry v Henry (1986) 185 CLR 571, applied.
Van Vliet v Griffiths (1979) 20 SASR 52; TRAMS Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312; Wickstead v Brown (1992) 30 NSWLR 1; Little v Victoria (1998) 4 CR 596; Meredith v Commissioner of Taxation (2002) 125 FCR 308; Boase v Jones (1925) VLR 465; Hutchison v Nominal Defendant [1972] 1 NSWLR 443; Wride v Schultz (2004} FCA 281, considered.

WRIDE v WERNER
[2004] SASC 211

Magistrates Appeal

WHITE J

Introduction

  1. This decision concerns three applications:  one by the Appellant seeking an extension of time in which to prepare and lodge appeal books, and two by the Respondents to have the appeal dismissed, pursuant to SCR 95.08, as incompetent, or, in the alternative, to have the notice of appeal struck out.

    Background

  2. The inter partes summons instituting these proceeding was filed on 17 October 2003.  The Defendant to the action was named as Janet Werner, Commissioner of Patents, IP Australia.  I take this to be a single Defendant identified by name, the office held by her and the body corporate of which that office forms part.

  3. The relief then sought by the Appellant was an order…

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AGLC
Wride v Werner [2004] SASC 211
Case
[2004] SASC 211
Decision Date

CaseChat Overview and Summary

In the case of Wride v Werner, the Appellant, Wride, filed an appeal against the Respondents, Werner and others, seeking various forms of relief, including an order for the issuance of a duplicate deed for Australian Patent 472,935. The dispute also involved allegations of conspiracy and breach of fiduciary duty against Collison & Co, a firm of Patent Attorneys, and other parties. The Appellant filed multiple applications, including an application for an extension of time to prepare and lodge appeal books, and the Respondents applied to have the appeal dismissed as incompetent or, alternatively, to have the notice of appeal struck out.

The legal issues that arose in this case included the competency of the appeal under SCR 95.08 and whether the Appellant had complied with the requirements of Rule 95.01. Additionally, the court had to determine whether the pursuit of these proceedings constituted an abuse of the process of the court. The Appellant's application for an extension of time to prepare and lodge appeal books was also considered, particularly in light of the Appellant's unrepresented status and the simplicity of the documentation required.

The court found that the appeal was incompetent for two reasons: non-compliance with the requirements of Rule 95.01 and the abuse of the court's process. The court determined that the Appellant had failed to properly serve some of the additional defendants and that the pursuit of the appeal was an abuse of the court's process due to the broad and vague nature of the allegations and the addition of multiple defendants without proper service. Consequently, the court dismissed the appeal as incompetent. The court also noted that even if the appeal had been considered under different rules, the outcome would have been the same. The Appellant's application for an extension of time to prepare appeal books was deemed unnecessary to consider due to the conclusion that the appeal was incompetent.

The final order of the court was that the appeal filed on 30 April 2004 be dismissed as incompetent. The court indicated that it would hear the parties regarding costs.

Orders

Orders of the court

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Background

Background to the litigation

This decision concerns three applications: one by the Appellant seeking an extension of time in which to prepare and lodge appeal books, and two by the Respondents to have the appeal dismissed, pursuant to SCR 95.08, as incompetent, or, in the alternative, to have the notice of appeal struck out.Background The inter partes summons instituting these proceeding was filed on 17 October 2003. The Defendant to the action was named as Janet Werner, Commissioner of Patents, IP Australia. I take this to be a single Defendant identified by name, the office held by her and the body corporate of which that office forms part. The relief then sought by the Appellant was an order requiring the Defendant, as Commissioner of Patents, to issue to him “a legal Deed” in respect of Australian Patent 472, 935. I understand the Appellant’s reference to a “legal Deed” to be a reference to a duplicate Deed for Australian Patent 472, 935. The Appellant alleges that Ms Werner, in her capacity as the Acting Commissioner of Patents at IP Australia, had, on 15 October 2002, issued a duplicate deed. This deed, so the Appellant alleged, was incomplete and fraudulent. The Appellant alleges that he had paid the requisite fee for the issue of the duplicate deed. His complaint in substance appeared to be that he had not received from IP Australia the document to which he says he was entitled. On 3 November 2003, the Appellant filed, without leave, an amended inter-partes summons together with an amended document headed “Statement of Claims/Orders Sought”. Insofar as it amended the “Statement of Claim” filed on 17 October 2003, it did not require leave (SCR 53.01), but the document went beyond that. It purported to add additional defendants being the National Australia Bank, Collison & Co (a firm of Patent Attorneys), Messrs G F Habel and H K Schulze (members of the firm of Collison & Co), the State and Federal Liberal Parties, and the Government of Australia. The Appellant has informed me that the only “service” on the National Australia Bank which he has effected has been by providing a copy to the suburban branch of the National Australia Bank at which he is accustomed to perform his day to day banking. This is not effective service. The Appellant informed me that no service at all has been effected on either the State or Federal Liberal Parties. None of the National Australia Bank, the State Liberal Party or the Federal Liberal Party has entered an appearance, nor an address for service, and none of them have appeared at any hearing. The allegations in the amended document are various. Against Collison & Co, there is an allegation of conspiracy and breach of fiduciary duty. It is alleged that the conduct (said by the Appellant to be corrupt and fraudulent) of Collison & Co deprived the Appellant of the benefit he would otherwise have derived from certain of his inventions relating to razors, a can opener and possibly to a hydraulic jack. I do not propose to attempt a complete summary.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although pursuant to Rule 95.08 the burden of establishing the competency of the appeal is on the Appellant, I am satisfied that the Respondents have established that the appeal is incompetent for the two reasons which I have discussed, namely, non-compliance with the requirements of Rule 95.01 and because the pursuit of these proceedings constitutes an abuse of the process of this Court. I will therefore make an order dismissing the appeal as incompetent.If Judge Kelly’s Decision is Interlocutory In case this matter goes further, I indicate that my view as to the competence of the appeal would have been the same even had I proceeded on the basis that the appeal, pursuant to Rule 106.05(2), was to a single Judge. The decision to which I have come would have been the same had I been considering the matter pursuant to SCR 97.11, bearing in mind the requirements as to the institution of an appeal imposed by Rule 97.03.Application for Extension of Time in Which to Prepare Appeal Books Given the conclusion which I have reached above, it is strictly speaking unnecessary to consider the Appellant’s application for an extension of time in which to prepare and lodge appeal books. However, I do state briefly my view. The Appellant sought an extension of time in which to prepare appeal books because, being unrepresented, he expected to have difficulty in complying with the requirements to have the appeal set down within two months of its institution. However, in my opinion, the preparation of the appeal books in this case should not have been a difficult process. The documentation to be included in the appeal books is of a limited kind. I am not satisfied that it is of such a kind that it could not be completed within the two months which the Rules permit. Had it been a live issue, I would have refused the application for extension of time in which to prepare and lodge the appeal books.Order The order of the Court is that the appeal filed on 30 April 2004 be dismissed as incompetent. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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