Practice and procedure - Appeal dismissed upon non-compliance with springing order - Application for extension of time to comply with springing order - Relevant principles - Application dismissed

A v C [2015] WASCA 122

Avsar v Binning [2009] WASCA 219

Leslighter v Fitzgerald-Stevens [2012] FamCAFC 94

MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

TP Engineering Pty Ltd v JM [2015] WASCA 181

1 JUDGMENT OF THE COURT: This is an application by the appellant for an extension of time to comply with a self-executing, or springing, order made on 2 June 2015, which required him to file and serve the appellant's case by 30 June 2015. The appellant failed to comply with the order and the appeal was accordingly dismissed. The appellant seeks a further opportunity to file the appellant's case.

2 It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded 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. See, for instance, MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] - [57] and the cases there cited; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53].

3 There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that 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.

4 It will also normally be a relevant consideration whether 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. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court: MTQ Holdings; TP Engineering.

5 The long history of this appeal is set out in detail in the reasons we gave on 12 June 2015 for making the self-executing order: A v C [2015] WASCA 122. It is appropriate to retrace some of that history.

6 The appeal was brought from a decision of the Family Court on 12 February 2014. The Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) required that the appeal notice be filed on or before 6 March 2014. It was not filed until 12 March 2014. The appellant therefore required an extension of time to file and serve the appeal notice.

7 The appellant's case was required by the Rules to be filed on or before 17 April 2014. It was not. Subsequently, two extensions of time were granted to the appellant. He complied with neither. Finally, on 20 June 2014, the appellant was ordered to file the appellant's case by 18 July 2014, failing which the appeal would stand dismissed. The appellant failed to comply with that order. However, on 13 August 2014, he was granted an extension of time, to 23 September 2014, to do so.

8 On the last day for compliance, 23 September 2014, the appellant filed a document that purported to be the appellant's case. Subsequently, the court of appeal registrar issued a notice to attend to consider whether the appeal should be dismissed on the ground that the appellant's case did not comply with the Rules. On the return date of that notice, 8 October 2014, the appellant was granted leave to file an amended appellant's case by 5 November 2014.

9 Again, the appellant waited until the last day for compliance, 5 November 2014, at which time he attempted to file a document that purported to be the appellant's case. The document was not accepted for filing because it manifestly did not comply with the Rules.

10 On 7 November 2014, the time within which the appellant was required to file an amended appellant's case was extended to 24 November 2014. The appellant did not comply with that order. Instead, on that day, he applied, in effect, for an order that the court accept the document rejected on 5 November 2014.

11 That application was dismissed on 21 January 2015 (in fact at the hearing that day it was not pressed) and an order made that an amended appellant's case be filed by 30 January 2015. Once again, the appellant did not act until the final day for compliance, 30 January 2015, when he filed another document that purported to be the appellant's case.

12 Subsequently, the registrar issued a notice to attend to consider whether the appellant's case should be struck out on the ground that none of the grounds of appeal had any reasonable prospect of succeeding. Programming orders were made for the parties to file and serve written submissions. The matter came on for substantive hearing on 2 June 2015. At the hearing, the appellant's case was struck out and an order made that, unless on or before 30 June 2015 the appellant filed an appellant's case which complied with the Rules, the appeal be dismissed.

13 The appellant did not do so. He sent three documents to the court by facsimile. The first was sent at 4 pm on 30 June 2015. It appears to have been intended to be only the first part of an appellant's case. Two further documents, apparently the balance of the appellant's case, followed on 1 July and 3 July 2015 respectively. None of those documents in combination or individually came close to constituting an appellant's case that complied with the Rules. As no compliant appellant's case had been filed by 30 June 2015, the effect of the order of 2 June 2015 was that the appeal was dismissed. A certificate of conclusion of civil appeal was sent to the appellant on 9 July 2015.

14 On 11 August 2015, the appellant filed the present application for an extension of time to comply with the order of 2 June 2015. The application is supported by an affidavit in which the appellant sets out his attempts to obtain legal assistance. Those attempts have turned out to be fruitless and we note there is no indication that the appellant is likely to be able to obtain legal assistance. He also complains that he is disadvantaged because he has no training in or knowledge of the law and English is not his first language. (We might note in passing, however, that it was not evident from the appellant's oral submissions that he had any real problems with the English language.) He attaches, too, a letter from a psychologist referring to some mental health issues which the psychologist says affect his cognitive abilities in terms of memory and focus. In addition, there are some, rather incoherent, parts of the affidavit that appear to be directed to the merits of the appeal.

15 The disadvantages of which the appellant complains may be accepted. We do not underestimate the difficulties he has faced in attempting to conduct the appeal. But the appellant's substantive difficulties are not transitory and the allowances that can be made for him are necessarily limited. Issues of fairness to the other party and of the efficient use of the resources of the court in the public interest and in the interests of other litigants seeking to have their cases heard, cannot be ignored in considering the indulgences that may properly be afforded to the appellant, or any litigant in person.

16 It is also a relevant consideration that there is nothing in the material put before this court to date which indicates that the appellant has any reasonable prospect of success on the appeal. On the hearing of this application, the appellant placed great store by the decision of the Full Court of the Family Court in Leslighter v Fitzgerald-Stevens [2012] FamCAFC 94, which, in effect, he said revealed the error in the reasoning in the decision below. We have read the reasons of the Full Court in Leslighter and can find nothing in those reasons that might assist the appellant.

17 In our view, the appellant has been afforded all the indulgences that can properly be afforded to him. The appeal was on foot for almost 16 months, during which time no substantive progress was made. Over a period of some 14 months the appellant was granted a total of eight extensions of time within which to file the appellant's case. On the three occasions the appellant attempted to file an appellant's case, the document he sought to file fell a very long way short of what was required and none contained a reasonably arguable ground of appeal. There is no reason to believe that if granted yet another opportunity he will fare any better. It is evident that the task is beyond him. But unless an appellant's case in an acceptable form, even if not in strict compliance with the Rules, is filed, the appeal cannot proceed. As this court pointed out in Avsar v Binning [2009] WASCA 219 [37]:

While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self-represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58]:

The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties. (authorities omitted)

18 The prejudice to the respondent if the time for compliance were extended is obvious. The respondent is entitled to grounds of appeal which adequately identify the case she has to meet and to have the appeal determined within a reasonable time. The respondent cannot be left in an indefinite state of uncertainty about the fate of the judgment she obtained in the Family Court or be expected to meet the appeal when no alleged error of the primary judge has been identified. The appeal has already been subject to very lengthy delay and there seems little prospect of the appellant producing acceptable grounds of appeal were a further indulgence to be granted.

19 On the other side, if the time for compliance is not extended, the appeal will have been irretrievably lost. To what extent that would cause any real prejudice to the appellant depends upon whether the appeal has any merit. As matters stand we are not persuaded that it has.

20 It is unfortunate for the appellant that he has been unable to secure legal assistance and that the task of proceeding with the appeal has turned out to be beyond his own capabilities. But there is no proper basis for extending time in circumstances where there has already been egregious delay, there is no reason to believe that more time will overcome the difficulties that have defeated the appellant to date, and there is nothing to indicate that the appeal has reasonable prospects of success in any event.