Court of Appeal (WA)|2007-10-26|Before: Pullin JA

SWINDALE -v- BABIC [2007] WASCA 254 (26 October 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Practice and procedure - Extension of time in which to appeal - Turns on own facts

Application for extension of time in which to apply for leave to appeal granted

1 PULLIN JA: This is an application for an extension of time to apply for leave to appeal against an interlocutory order made by Judge Groves. The order was made during a trial of a personal injuries action. The order was that the appellant's application for leave to lead evidence from some doctors about surveillance tapes should be dismissed. The application for leave to appeal against this order was filed five days out of time.

2 It would be an unusual case for a court to agree to grant leave to permit an appeal against an interlocutory decision made during the course of a trial, because such decision, if made in error, can be corrected on appeal from the final judgment. Gerlach v Clifton Bricks [2002] HCA 22; (2002) 209 CLR 478 at [44] - [51]. Thus it would be even more unusual to grant an extension of time to permit such an appeal. One of the reasons for this is because the appellant may succeed in the trial and the appeal would then be otiose.

3 However, this is an unusual case. The surveillance tapes were admitted into evidence. The plaintiff's doctors commented on what was shown in the tapes. The appellant wanted its doctors to do likewise but did not comply with O 36A and so sought leave to lead the evidence. This application was refused. The trial judge then adjourned the proceedings to allow his decision to be reviewed in this court. That is a factor which I had taken into account on this application.

4 If an extension is to be granted, then the relevant matters to be considered are the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of prejudice to the parties. Here the delay of five days was due to a misapprehension as to the requirements of the rules. In my opinion, the grounds of appeal raise an arguable case. As to prejudice, the respondent submits that granting the extension which would permit the appeal to proceed would unduly interfere with the progress of the trial, however that has already occurred as a result of the judge's decision to adjourn the trial.

5 The respondent also says that if the resolution of the appeal takes too long it may give rise to the type of problems which occur when judgment in a trial is delayed. That problem can be ameliorated by an order that the appeal be expedited, and that is what I would propose to do. An extension of time should be granted. The application for leave to appeal should be dealt with at the hearing of the appeal.

2 It would be an unusual case for a court to agree to grant leave to permit an appeal against an interlocutory decision made during the course of a trial, because such decision, if made in error, can be corrected on appeal from the final judgment. _Gerlach v Clifton Bricks_

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Judgment (12 paragraphs)

SWINDALE -v- BABIC [2007] WASCA 254 (26 October 2007)