Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58

Practice and procedure - Application for an extension of time to file appellant's case after appeal dismissed by operation of springing order - Turns on own facts

A v C [No 2] [2015] WASCA 199

Armstrong v Commissioner for Consumer Protection [2015] WASCA 216

Bradley v The State of Western Australia [2016] WASCA 33

FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Ibrahim v The Honourable Justice Carolyn Martin [2013] WASCA 14

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58

Legal Profession Complaints Committee v in de Braekt [2013] WASC 124

Michaud v Stefanovski [2016] WASCA 85

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69

Reid v South West Regional College of TAFE [2015] WASCA 231

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588

Warley Pty Ltd v Adco Construction Pty Ltd (1988) 8 BCL 300

1 REASONS OF THE COURT: This matter came before the court on 3 October 2016 to consider the appellant's application dated 30 June 2016 for, amongst other things, an extension of time in which to file her appellant's case.

2 The appeal in this matter was against the decision of the State Administrative Tribunal (the Tribunal) on 27 March 2012 in which the appellant, then a legal practitioner, was found to have engaged in five counts of professional misconduct: Legal Profession Complaints Committee and in de Braekt[1] (primary decision). In a supplementary decision, the Tribunal ordered that a report be transmitted to the Supreme Court (full bench) (Full Court) with a recommendation that the appellant's name be removed from the roll of practitioners: Legal Profession Complaints Committee and in de Braekt[2] (supplementary decision). After the appeal herein had been dismissed, on 12 April 2013, the Full Court published its decision in relation to the Committee's motion to strike the appellant off the roll: Legal Profession Complaints Committee v in de Braekt (strike off decision).[3] The Full Court agreed with the Tribunal's conclusion that the appellant was not a fit and proper person to remain on the roll, and also agreed with the Tribunal's reasons for reaching that conclusion. The appellant was consequently struck off the roll.

3 Accordingly, the appellant's present application, for an extension of time to file her appellant's case, was filed over three years after the appeal had been dismissed pursuant to the execution of a springing order, and over three years after the Full Court had removed the appellant's name from the roll of legal practitioners.

4 The Legal Profession Complaints Committee (the Committee) brought professional disciplinary proceedings in the Tribunal against the appellant pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LPA). The Committee alleged, in effect, that the appellant had engaged in professional misconduct as defined in s 403 of the LPA by (relevantly):[4]

(a) knowingly misleading the Magistrates Court during proceedings on 4 June 2009 and 6 July 2009 by stating that she had not received a colour copy of a digiboard from police when such disclosure had in fact been made;

(b) being persistently discourteous and offensive to a Deputy Chief Magistrate during a hearing in the Magistrates Court on 4 June 2009;

(c) sending discourteous and offensive emails to a detective between 16 June 2009 and 29 June 2009;

(d) sending an offensive, discourteous and threatening email to a detective on 30 June 2009; and

(e) behaving in a discourteous and abusive manner to a security supervisor on 16 January 2009 while visiting the Central Law Courts in the course of carrying out her legal practice.

5 On 27 March 2012, the Tribunal found that the appellant was guilty of professional misconduct in each of these respects and required the parties to file submissions in relation to penalty and costs, and directed that these remaining issues were to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Committee was required to file and serve its submissions by 16 April 2012, the appellant was required to file and serve her submissions by 7 May 2012, and the Committee was required to file and serve any submissions in reply by 14 May 2012.[5]

6 On 10 April 2012, the appellant applied for an extension of time by which she was required to file and serve her submissions until 24 June 2012. That application was rejected.[6]

7 On 16 April 2012, the Committee filed submissions and sought orders for, amongst other things, a report to be transmitted to the Full Court recommending that the appellant be struck off the roll.[7]

8 On 7 May 2012, the appellant again applied for an extension of time by which she was required to file and serve her submissions. Judge Parry granted an extension to 14 May 2012, and also extended the date by which the Committee was required to file and serve any submissions in reply to 21 May 2012.[8]

9 The appellant did not file any submissions by 14 May 2012 and was advised, on 16 May 2012, that the Tribunal would determine the issues of penalty and costs without her submissions if she did not file anything by 21 May 2012.[9] In other words, she was effectively given another extension of seven days.

10 The appellant did not file any submissions by 21 May 2012 or subsequently.[10]

11 On 25 May 2012, the Tribunal published its supplementary decision to transmit a report to the Full Court, in accordance with s 438(2)(a) of the LPA, with a recommendation that the appellant's name be removed from the roll.

12 In June 2012, the Committee lodged a motion to remove the appellant's name from the roll. In late July 2012, the appellant was given notice that the motion would be heard on 26 October 2012.

13 On 22 October 2012, the appellant filed an appeal notice dated 19 October 2012 against the primary decision. The appeal notice stated that an extension of time in which to appeal was required. The appeal notice was filed some six months after the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) required it to be filed. On 22 October 2012, the appellant also filed an affidavit in support of an application for leave for an extension of time in which to commence the appeal. However, despite repeated requests, the appellant failed to lodge the documents necessary to support this application.[11]

14 In the week leading up to 26 October 2012, the appellant corresponded with officers of the court asserting that she would be unable to appear at the hearing on that date. She was advised that if she wished to apply for an adjournment of the hearing, it would be necessary for her to make an application to that effect. However, no application was made in compliance with the rules of the court.

15 On the morning of 26 October 2012, the appellant sent the court a letter, an affidavit and a document on which she had written: 'I can't work out which form I have to use for an adjournment application. I apply for today's hearing to be adjourned'.[12] In her letter, the appellant said that she would be unable to attend court and was endeavouring to obtain an appointment with her medical practitioner. In her affidavit, she deposed to her inability to attend court on the basis that she was unable to cope since her practising certificate had been suspended, and was suffering from chronic depression and a nervous breakdown.[13]

16 On 26 October 2012, the Full Court heard the Committee's motion to strike the appellant off the roll. The appellant did not appear at the hearing, nor did any person appear on her behalf. The Court indicated to counsel appearing on behalf of the Committee that it would receive oral submissions, but would defer the delivery of any decision on the motion until such time as the appeal against the primary decision was determined.[14]

17 On 3 December 2012, the court sent the appellant a letter informing her that her appellant's case in the appeal against the primary decision was due to be filed and served by 26 November 2012, but had not yet been received and requested that she attend to this matter without any further delay.[15] Nothing was done by the appellant.

18 On 18 December 2012, a registrar's notice to attend before the court on 10 January 2013 was issued to the parties. The notice included the appellant's postal and email addresses as listed in her appeal notice.

19 On 10 January 2013, Pullin JA ordered that the appeal against the primary decision be dismissed unless the appellant filed and served her appellant's case by 24 January 2013.

20 On 15 January 2013, the court sent a copy of Pullin JA's order to the parties, including to the postal and email addresses listed in the appellant's appeal notice dated 19 October 2012.

21 On 29 January 2013, following non-compliance with Pullin JA's order of 10 January 2013, a Court of Appeal registrar executed a certificate of conclusion of civil appeal stating that the appeal stood dismissed.

22 On 29 January 2013, the court sent a copy of the certificate of conclusion to the parties, including to the postal and email addresses listed in the appellant's appeal notice dated 19 October 2012.

23 Following dismissal of the appeal against the primary decision, the appellant was advised that the court would receive any further submissions from her in relation to the motion to remove her name from the roll, provided those submissions were received within the next month. No submissions were received.[16]

24 As indicated earlier, on 12 April 2013, the Full Court published its strike off decision.

25 Over three years later, on 30 June 2016, the appellant filed the present application for, amongst other things, an extension of time in which to file her appellant's case in relation to the appeal against the primary decision. On the same date, she filed an affidavit sworn by herself on 30 June 2016 in support of the application. In her affidavit the appellant explained that, if an extension of time were to be granted, she intended to make an application to have the strike off decision set aside.[17]

26 On 25 August 2016, the appellant had a consultation with Dr Skerritt, a psychiatrist, and a report was subsequently prepared.[18]

27 On 16 September 2016, the appellant, through her counsel, filed an outline of submissions dated 8 September 2016 in support of her application, annexing Dr Skerritt's psychiatric report. These submissions were confined to her application to extend the time for the filing of her appellant's case.[19]

28 On 23 September 2016, the Committee filed submissions in response to the appellant's application and filed an affidavit sworn by Stephen Robert Merrick on the same date.

29 It is convenient to note here the findings of the Full Court. The Full Court referred to the misconduct referred to in par (a) of [4] above as 'Incident A'; the misconduct referred to in par (b) of [4] above as 'Incident B'; the misconduct referred to in pars (c) and (d) of [4] above as 'Incidents C and D'; and the misconduct referred to in par (e) of [4] above as 'Incident E'.

30 In relation to 'Incident A' the Full Court referred to the Tribunal's view that these matters would themselves justify the conclusion that the appellant was not a fit and proper person to remain a legal practitioner.[20] The Full Court evidently agreed, and said:[21]

As outlined, the Tribunal concluded that the seriousness of Incident A, which involved knowingly and dishonestly misleading the Magistrates Court on two occasions, warranted a determination that the [appellant] should be removed from the Roll, irrespective of the other instances of misconduct ([supplementary] decision [26]). While there have been instances in this State where a practitioner has received a penalty other than removal from the Roll for knowingly misleading the court: Vogt [v Legal Profession Complaints Committee [2009] WASCA 202]; Legal Profession Complaints Committee and Segler [2010] WASAT 135; Legal Profession Complaints Committee and Gandini [2011] WASAT 86, there are a number of factors which militate against imposing a lesser penalty in this case. Firstly, the [appellant] misled the Magistrates Court on two separate occasions, before two separate Magistrates. It is well established that a practitioner's misconduct is made more serious where it is repeated: The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 [67] (McMurdo P, Davies JA and Helman J agreeing). Secondly, there are no extenuating or mitigating factors present here, such as inexperience, as was the case in Legal Profession Complaints Committee and Gandini, or duress as was the case in Legal Profession Complaints Committee and Segler.

31 In relation to Incidents B to E, the Full Court agreed with the Tribunal's view that they would not individually warrant a determination that the appellant should be removed from the roll, but collectively they demonstrated 'a persistent disregard for the duties of a legal practitioner, the professional standards expected within the legal profession, and the need to maintain and respect the goodwill and trust reposed in the legal profession by the general public, and by those in regular contact with the legal profession, such as police and court staff'.[22]

32 The reference to 'court staff' in the preceding paragraph is a reference to Incident E, to which the Full Court referred in the following terms:[23]

The final incident dealt with by the Tribunal was an exchange between the [appellant] and Mr Rajandran Kanapathy, a court security supervisor, on 16 January 2009 at the Central Law Courts (CLC). The [appellant] had previously expressed her dissatisfaction with the change in security policy at the CLC, which now required practitioners to submit to a security screening before entering the secure area. On the day in question, she entered the secure area of the CLC without going through the screening process, and proceeded to the notice board listing the daily list of matters. Mr Kanapathy, noticing this, instructed his co-worker, who was attending the security checkpoint, to approach the [appellant] and ask that she comply with the security procedure. After his co-worker did as instructed, and requested that the [appellant] pass through the security checkpoint, the [appellant] indicated she did not wish to do so. Mr Kanapathy then approached the [appellant] and politely asked her to comply with the standard security procedure. The [appellant] refused to do so, citing a letter she had written to the Chief Magistrate protesting about the procedure. Mr Kanapathy then told the [appellant] that if she received a reply from the Chief Magistrate that she was exempt from the search procedure she would be able to bypass the security checkpoint on her next visit to the CLC, however, on this occasion she would have to comply with the procedure. Mr Kanapathy gave evidence to the effect that following this the [appellant] became abusive towards him, saying, among other things, words to the effect of:

(a) 'Are you from Singapore? I know you're from Singapore, go back to your country, we don't need people like you here';

(b) 'Singaporean prick';

(c) 'prick' (approximately six times); and

(d) that he had 'short man syndrome' ([primary] decision [192]).

The Tribunal accepted the evidence of Mr Kanapathy, and other witnesses of the exchange between Mr Kanapathy and the [appellant] who substantially corroborated Mr Kanapathy's evidence. The Tribunal found that the [appellant's] 'extraordinary display of discourtesy and abusive conduct' constituted professional misconduct ([primary] decision [193]).

33 In this application, the appellant conceded calling Mr Kanapathy a 'prick' and saying that he had 'short man syndrome'.[24]

34 In her affidavit sworn 30 June 2016, the appellant deposed, amongst other things, in effect that:

1. She 'mistakenly' recorded her address details in the appeal notice as a post office box address in Victoria Park WA. She no longer had this post office box, and thus did not receive the registrar's notice to attend before Pullin JA on 10 January 2013. This only came to her knowledge after inspecting the Court of Appeal file in January 2016.[25]
2. She did not receive a copy of the springing order made by Pullin JA on 10 January 2013. This order was forwarded to the post office box she provided as her address in her appeal notice (see above), which she no longer held, and she only first saw Pullin JA's order in January 2016.[26]
3. She knew the appellant's case had to be filed within 35 days of the appeal having been commenced but could not do this herself because of mental illness ('chronic depression/nervous breakdown') and could not engage and instruct a lawyer to do this on her behalf.[27]
4. Between January 2013 and July 2014, she continued to be unable to engage and instruct a lawyer due to her mental illness and impecuniosity. She says that the nature of the proceedings and volume of documentation meant that lawyers could not act on her behalf without instructions and it was unreasonable, if not impossible, to expect pro bono legal representation.[28]
5. On 17 August 2014, her house was accidentally set on fire and documents related to the primary proceedings, which were necessary to complete the appellant's submissions and case, were destroyed. She says that, even if she did have all the documents related to the appeal, she was not in a fit state to do anything with them due to trauma and dislocation suffered from the fire.[29]
6. It was not until October 2015, when her house was once again habitable and when she received an offer for pro bono legal representation from her present counsel in a Federal Circuit Court matter, that she was able to deal with legal matters again. It was, however, 'impossible' for her to 'analyse' the primary decision until January 2016 onwards.[30]
7. In October 2015, she attempted to obtain copies of documents she had lost in the fire but, due to impecuniosity, was unable to get copies from the Tribunal. In March 2016, when she was no longer impecunious, she made another request to the Tribunal for replacement copies of the documents, for which she was successful, and obtained copies of exhibits on 18 March 2016. She immediately commenced analysis of these documents and forwarded a draft version of her submissions to her counsel on 2 April 2016.[31]
8. She has been attending medical appointments and interacting with doctors since the second half of 2012 in relation to her mental and other health problems.[32]

35 The submissions filed on behalf of the appellant on 16 September 2016 annexed a copy of a psychiatric report from Dr Skerritt dated 30 August 2016. This report refers to a consultation with the appellant on 25 August 2016, and a letter received from counsel for the appellant dated 25 August 2016. A copy of this letter was annexed to Mr Merrick's affidavit. The letter attached a chronology of certain events and the appellant's affidavit sworn 30 June 2016.[33]

36 In the report, Dr Skerritt recorded the appellant's psychiatric history over a period beginning in about 1999. He then said:

Thus we have very clear diagnoses of major depressive disorder of the melancholic type and panic disorder often approaching agoraphobia. This has been present in a fluctuating way since she was 17 but most particularly since about 2011.

The particular shortcomings of failing to attend court and submit documents can easily be explained in terms of these diagnoses. The depression produces a great dealing of slowing of the thought processes ... The anxiety presents itself typically as panic attacks in certain situations ... I think that these areas of symptoms explain all of the unfortunate events of the last several years.

37 The reference to 'we' in the first line quoted above is evidently Dr Skerritt's reference to himself.

38 In Mr Merrick's affidavit sworn on behalf of the Committee, he says that, on his examination of the files in this appeal, in the primary proceedings and in the Full Court proceedings, the appellant has used, since at least February 2011 to 23 September 2016, the same email address for correspondence with the Committee, the Tribunal, the Supreme Court, and/or the Court of Appeal. The affidavit also annexed copies of documents sent to or from the appellant's email address including:

(a) an email dated 15 January 2013 from the associate to a Court of Appeal registrar, attaching a copy of Pullin JA's order dated 10 January 2013;

(b) an email dated 29 January 2013 from the associate to the Court of Appeal Registrar, attaching a copy of the certificate of conclusion of the appeal dated 29 January 2013; and

(c) an emailed copy of a letter dated 30 June 2016 from the appellant to the associate to a Court of Appeal registrar, informing the court, amongst other things, of her application filed that day and her intention to file an affidavit attaching medical reports.

39 The proper administration of justice, and the quality of justice for the other party, generally require that a springing order is the last opportunity afforded to a party to put its case in order: A v C [No 2].[34] Failure to comply with a springing order is an egregious breach and, while the court has the power to extend time for compliance even after the order has taken effect, such an extension will only be granted where the party has established that there are compelling reasons for doing so: Armstrong v Commissioner for Consumer Protection.[35] The power is one to be exercised with caution and with due regard to the public policy centred in the finality of litigation: FAI General Insurance Company Limited v Southern Cross Exploration NL.[36]

40 In this court in A v C [No 2], the court said:[37]

There is ... 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.

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 [Pty Ltd v Lynch [2007] WASC 49]; TP Engineering [Pty Ltd v JM [2015] WASCA 181].

41 Observations to a similar effect were also made in Bradley v The State of Western Australia.[38]

42 Counsel for the appellant nevertheless submitted, in effect, that it would be wrong to take into consideration, in this context, whether the appeal has reasonable prospects of succeeding. It was submitted that 'it need only be demonstrated the appeal is not futile, as distinct from there being an arguable case'.[39] Counsel relied, in this regard, on Jackamarra v Krakouer,[40] which related to an appeal to the Full Court of Western Australia prior to the establishment of the Court of Appeal under the Acts Amendment (Court of Appeal) Act 2004 (WA) and the introduction of the Court of Appeal Rules.

43 Jackamarra concerned an application for an extension of time in which to enter an appeal for hearing made in response to a notice of motion to dismiss the appeal for want of prosecution. Chief Justice Brennan and McHugh J said that where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. Where, however, the application concerns an extension of time for taking a procedural step in prosecuting the appeal, the merits are not relevant unless the court is satisfied that the appeal is so devoid of merit that it would be futile to extend time. The reason for taking a different approach is, in effect, due to the impact of the extension of time on the respondent. An extension of time to lodge an appeal involves putting at risk a vested right of the respondent to retain the judgment. By comparison, no such right is at risk when an extension of time is made to comply with a procedural step.[41]

44 Justices Gummow and Hayne (who dissented in the result) said:[42]

The parties submitted here that the Full Court should have decided whether the appeal was 'arguable'. It is important to understand what is meant in this context by 'arguable'. If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed. To permit it to proceed is to subject the respondent to the many costs of litigation needlessly and is to occupy the courts when they could be occupied more productively.

...

In the present case, the appellant accepted in the Full Court that she had to show that the appeal was arguable. ... And the appellant was right to proceed on the basis that a necessary part of the argument in support of the application to extend time and the opposition to the application to strike out was to show that the appeal was arguable. If she did not show that the appeal was arguable there would be no point in extending time and she would suffer no injustice if the rules were applied; the application to strike out should succeed.

45 Justice Kirby (who agreed in the result with Brennan CJ and McHugh J) said that a party seeking an indulgence bears the burden of persuading the court to grant its request and that a relevant consideration is whether the case is 'arguable'. His Honour said that if it is 'hopeless, unarguable or bound to fail, the request for an extension of time will be refused ... this is basically because to grant it would be futile'.[43]

46 At the outset, it may be observed that Jackamarra did not concern an application for an extension of time where the appeal had already been dismissed. Further, it is unnecessary, for present purposes, to explore the differences in approach between the plurality (Brennan CJ and McHugh J) and the dissentients (Gummow and Hayne JJ), or the differences (if any) between the plurality and Kirby J, or between the dissentients and Kirby J.

47 The extension of time sought by the appellant in this case arises within a procedural context in which pt 5 r 43(2)(f) and r 43(2)(g)(i) of the Court of Appeal Rules provide, in effect, respectively, that a ground of appeal may be struck out if it has no reasonable prospect of succeeding, and an appeal may be dismissed if none of the grounds of appeal has a reasonable prospect of succeeding. For a ground of appeal to have a reasonable prospect of succeeding in this context, it must have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding; in effect, that it has a real prospect of success.[44] The purpose of these rules is to weed out unmeritorious appeals.[45]

48 If, as is the case, a ground of appeal may be struck out or an appeal may be dismissed on the above bases whilst an appeal is on foot, it is (at least) open to consider whether the grounds of appeal have a reasonable prospect of succeeding in the sense described above, when an application is made for an extension of time after an appeal has been dismissed upon the execution of a springing order. It is unnecessary to go beyond that conclusion for the purposes of the disposition of this appeal.[46]

49 The appellant's application for an extension of time should be dismissed. The following matters are of particular pertinence.

50 First, the circumstances in which the springing order came to be made indicate serious delays and non-compliance by the appellant with the rules and orders of this court. In particular, at that time:

(a) the appellant's appeal notice was filed some six months out of time;

(b) although the appellant filed an affidavit for the purpose of seeking to extend the time to commence the appeal, she had not filed an application to extend time to commence the appeal and there had been no attempt, prior to 10 January 2013, to obtain a court order extending the time for the commencement of the appeal;

(c) the appellant's case was not filed within the time prescribed by the Court of Appeal Rules, even though the appellant accepts that she knew of the relevant time limits;

(d) the appellant made no application to extend the time to file her appellant's case; and

(e) the appellant failed to respond or deal with the court's letter dated 3 December 2012 requiring the appellant to file her appellant's case without further delay.

51 Secondly, the appellant has not provided any, or any good reason, for her non-compliance with the springing order. The assertions that she did not receive the registrar's notice to attend before Pullin JA on 10 January 2013, or Pullin JA's order of that date, are of no assistance to the appellant. Even if those assertions were taken at face value, it was incumbent upon the appellant (a legal practitioner at the time) to give a proper and 'unmistaken' address for service. Also, her assertions cannot be accepted at face value when the evidence indicates that she was corresponding with the court using a particular email address, and the registrar's notice to attend before Pullin JA, and Pullin JA's order, were sent by the court to that email address. Accordingly, we are not satisfied on the evidence that she did not receive notice by email, but even if she did not, she was, objectively, informed of the registrar's notice to attend and Pullin JA's order, via service at the address which she had given as her address for service.

52 Further, insofar as the appellant asserts that she was impecunious and therefore unable to deal with the appellant's case at the relevant time, such contention is unsupported by any cogent evidence as to her means and assets at the time. In relation to the appellant's mental health, despite her evidence that she has been in contact with medical practitioners for a number of years, she has not put before the court any contemporaneous evidence from her treating doctors about her medical condition in the period January 2013 to June 2016. Nor does Dr Skerritt's report materially assist the appellant. He was not the appellant's treating doctor in 2012/2013 (and indeed he appears to have been only consulted in order to provide an expert report for the purposes of the current application). His views were effectively based on a history provided by the appellant, to the accuracy of which the appellant has not deposed in any detail. Also, insofar as he found a 'fluctuating' depressive disorder, 'particularly since about 2011', his opinion provides no sound basis for concluding that the appellant was afflicted by this disorder in early 2013 when she failed to comply with the springing order of Pullin JA. Absent specific evidence as to her condition in early 2013, the mere failure to comply with the court's orders and directions cannot, of itself, provide evidence that she was prevented from doing so by reason of a fluctuating depressive disorder.

53 Thirdly, on the question of prejudice to the appellant, the appellant contends, in effect, that if time is not extended, she will remain struck off the roll, whereas if an extension were granted, and the appeal succeeded, this 'could pave the way for the Appellant to resume practice as a legal practitioner'.[47] The respondent, in its submissions, did not contend to the contrary, although neither party sought to explain the process by which any reversal of the Tribunal's decision on appeal could result in a reversal of a final decision of the Full Court. For present purposes, we will assume in favour of the appellant (without deciding) that if leave is not granted, the appellant will lose the opportunity of challenging the Full Court's decision to remove her name from the roll, and to that extent, she could suffer prejudice if an extension were not granted.

54 Fourthly, with respect to the position of the Committee, the appellant contended that a question of prejudice could not arise because, in dealing with the appeal, the Committee would merely be 'carrying out its statutory functions'.[48] That submission should be rejected. The Committee is a body established under s 555 of the LPA. It is a committee of the Legal Practice Board established under s 534 of the LPA.[49] Its function is, amongst other things, to supervise the conduct of legal practitioners, to inquire into complaints received, and to institute professional disciplinary proceedings in the Tribunal.[50] In that regard, it is, in effect, a servant of the broader administration of justice. Its resources are limited. The prejudice to the Committee lies in the additional trouble and expense that will inevitably be involved in refamiliarising itself with the issues and materials for an appeal from a decision in a long and fact-intensive case (the primary proceedings occupied approximately seven hearing days), years after the event. Also, if the appeal was successful, the likely result would be a referral of the matter back to the Tribunal and a rehearing before the Tribunal of the events in question in 2009. A delay of three and a half years is, similarly, likely to result in additional trouble and expense in dealing with what would effectively be a fresh set of disciplinary proceedings.

55 Fifthly, the delay in bringing the application is substantial by any objective standard. The appellant, in effect, contends in her affidavit that the delay may be attributed to her impecuniosity, a lack of mental capacity and the 'trauma [and] dislocation' caused by the fire in her home on 17 August 2014. As noted above, however, there is no cogent evidence of impecuniosity. Dr Skerritt's report was based on a history, the details of which were largely uncorroborated by the appellant on oath. As to the fire, the copy of the discharge summary annexed to the appellant's affidavit (which itself appears to be incomplete, at least with respect to past medical history), indicates that the appellant was admitted to hospital on 17 August 2014 and discharged on 1 September 2014. It may be accepted that this event affected her ability to bring an application in late 2014, but it provides no adequate explanation for the whole three-and-a-half-year delay since January 2013.

56 Further, the delay is to be understood in the context that there is still no application to extend the time in which to commence the appeal. The Committee has a vested right to retain the judgment given in its favour in the Tribunal: Gallo v Dawson;[51] Reid v South West Regional College of TAFE.[52]

57 Also, in assessing the seriousness of the delay, it is significant that the appellant has not yet prepared a draft appellant's case in accordance with pt 5 r 32 of the Court of Appeal Rules. The 'Appellant's case' attached as the third annexure to the appellant's affidavit is a prolix and discursive document. It contains five grounds, interspersed with certain arguments, some of which allege certain breaches of natural justice which are not the subject of any specific ground of appeal. The five grounds challenge the ultimate findings of professional misconduct. It is not clear from the appellant's document whether, and if so on what basis, it is said, at least in relation to grounds 1 and 5, that the Tribunal could not properly conclude that it had 'significant doubts as to her truthfulness and credibility'[53] and that aspects of 'her evidence [were] "dreamt up" on the spot, and ... unconvincing'.[54] Insofar as the appellant contends that the Tribunal should not have accepted the testimony of other witnesses because they lacked 'integrity',[55] or they gave 'false'[56] or 'dishonest'[57] testimony or they 'lied',[58] the appellant fails, or at least fails in any clear way, to engage with the reasoning of the Tribunal for accepting the evidence of those witnesses. Further, and contrary to the appellant's submissions, there is no 'error of law' in the Tribunal merely accepting the evidence of certain witnesses over others.[59] Moreover, insofar as the 'Appellant's case' challenges findings of fact, it makes no attempt to comply with Practice Direction 7.4. That Practice Direction requires, relevantly and in effect, an appellant to identify not only the evidence which supports the appellant's ground, but also all the evidence which supports the primary court's challenged findings of fact. The importance of compliance with Practice Direction 7.4 for the proper disposition of any appeal in this case is plain.

58 Accordingly, there is no evidence that, even now, the appellant is ready to comply with the Court of Appeal Rules and the relevant Practice Direction, and proceed with the appeal with proper expedition.

59 Accordingly, for these reasons, the appellant's application for an extension of time should be dismissed. That conclusion is confirmed by, but not dependent upon, the following further observations as to prospects of success.

60 The 'Appellant's case' displays a misunderstanding of the nature of the appeal insofar as the appellant submits that the appeal is a hearing de novo.[60] That is not the case. Any appeal would be by way of rehearing: Mijatovic v Legal Practitioners Complaints Committee.[61]

61 Further, any prospect that the appellant has of overturning the Full Court's strike-off decision would depend upon her succeeding on ground 1. In this regard, as noted earlier, the Tribunal found, and the Full Court agreed, that the appellant's conduct in knowingly misleading the Magistrates Court would itself warrant the conclusion that she should be removed from the roll.[62] In oral submissions, counsel for the appellant submitted that 'ground 1 in particular', which challenges the finding that the appellant knowingly misled the Magistrates Court, 'has a substantial issue or two to raise which would warrant the granting of the extension of ... time'.[63] He said that '[i]n relation to the [other grounds of appeal], we say that there's a flow-on effect because lots of what happened in the [Tribunal] was a product of findings of credibility that were made and made in particular in connection to the matters the subject of ground 1'.[64]

62 As the appellant's counsel effectively accepted, ground 1, as presently framed, challenges a finding that turned 'largely on the credibility of three witnesses'.[65] The Tribunal found that the witnesses giving evidence against the appellant were credible and reliable. The Tribunal preferred their evidence and expressed significant doubts as to the truthfulness and credibility of the appellant's evidence.[66] Although the 'Appellant's case' referred to certain observations of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq),[67] ground 1 and its associated arguments, appear to pay lip service to, rather than recognise in any substantive way, the admonition that the Tribunal's findings of fact should not be interfered with, unless they are 'glaringly improbable' or 'contrary to compelling inferences' or are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony': Robinson Helicopter Company Inc v McDermott.[68] It may be that if counsel for the appellant were to 'recast [ground 1] somewhat to bring greater focus to it',[69] as he suggested he would be looking to do, the apparent deficiencies could be satisfactorily addressed.

63 Since the hearing of this application, and contrary to her counsel's oral submissions, the appellant has indicated by email that her written submissions in her draft 'Appellant's case' will remain unchanged. However, the appellant is bound by her counsel's oral submissions and, in any event, her 'Appellant's case', as presently formulated, does not disclose, with any clarity, any rational or logical prospect of ground 1 succeeding.

[1] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58

[2] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58(S).

[3] Legal Profession Complaints Committee v in de Braekt [2013] WASC 124.

[15] Affidavit of Stephen Robert Merrick, sworn 23 September 2016, annexure SRM1.

[17] Affidavit of the appellant, sworn 30 June 2016, par 57.

[18] Appellant's outline of submissions, filed 16 September 2016, par 43 and attachment.

[19] Appellant's outline of submissions, filed 16 September 2016, par 11.

[22] Strike off decision [33] - [34].

[23] Strike off decision [13] - [14].

[24] Affidavit of the appellant, sworn 30 June 2016, annexure 3, par 127.

[25] Affidavit of the appellant, sworn 30 June 2016, pars 8 - 9.

[26] Affidavit of the appellant, sworn 30 June 2016, pars 11, 14.

[27] Affidavit of the appellant, sworn 30 June 2016, pars 12, 15.

[28] Affidavit of the appellant, sworn 30 June 2016, pars 15 - 16.

[29] Affidavit of the appellant, sworn 30 June 2016, pars 19, 25 - 26.

[30] Affidavit of the appellant, sworn 30 June 2016, pars 26 - 27, 29.

[31] Affidavit of the appellant, sworn 30 June 2016, pars 30 - 34.

[32] Affidavit of the appellant, sworn 30 June 2016, pars 17 - 18, 43.

[33] Affidavit of Stephen Robert Merrick, sworn 23 September 2016, annexure SRM5.

[34] A v C [No 2] [2015] WASCA 199 [2].

[35] Armstrong v Commissioner for Consumer Protection [2015] WASCA 216 [14].

[36] FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283.

[37] A v C [No 2] [3] - [4].

[38] Bradley v The State of Western Australia [2016] WASCA 33 [47] - [48].

[39] Appellant's outline of submissions, filed 16 September 2016, par 35.

[40] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516.

[44] See MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69 [23]; Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[46] cf Ibrahim v The Honourable Justice Carolyn Martin [2013] WASCA 14 [17], where the appeal had been commenced in time and it had not been dismissed following the execution of a springing order.

[47] Appellant's outline of submissions, filed 16 September 2016, par 54.

[48] Appellant's outline of submissions, filed 16 September 2016, par 60.

[51] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480 - 481.

[52] Reid v South West Regional College of TAFE [2015] WASCA 231 [45].

[55] Affidavit of the appellant, filed 16 September 2016, annexure 3, par 41.

[56] Affidavit of the appellant, filed 16 September 2016, annexure 3, par 46.

[57] Affidavit of the appellant, filed 16 September 2016, annexure 3, par 50.

[58] Affidavit of the appellant, filed 16 September 2016, annexure 3, par 70.

[59] Warley Pty Ltd v Adco Construction Pty Ltd (1988) 8 BCL 300, 310 - 311; Michaud v Stefanovski [2016] WASCA 85 [45].

[60] Affidavit of the appellant, filed 16 September 2016, annexure 3, par 8.

[61] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [168].

[62] Supplementary decision [26]; Strike off decision [32].

[67] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 [93].

[68] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].