Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2012] WASC 338

Practice and procedure - Appellant failed to comply with rules of court - Application for an extension of time to file appellant's case - No satisfactory explanation for non-compliance - Application for an extension of time dismissed - Appeal dismissed

Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5, r 26, r 43(2)(g)

Application for an extension of time to file appellant's case dismissed

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Dodds v Kennedy [2011] WASCA 32

Hayes v Powers (Unreported, WASCA, Library No 990103, 5 March 1999)

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

Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41

1 REASONS OF THE COURT: These reasons deal with matters heard by the court on 18 September 2012, and in subsequent supplementary written submissions.

2 By notice dated 29 August 2012, the registrar of the Court of Appeal notified the parties to attend a hearing on 18 September 2012 in order to consider the appellant's application for an extension of time to file his case.

3 The appellant is a litigant in the Family Court of Western Australia. The respondent was a judge of that court. There have been numerous appeals commenced by the appellant in relation to the litigation in the Family Court, including against interlocutory decisions of that court.

4 On 16 December 2010 the appellant filed an originating motion (bearing date 14 December 2010) in the Supreme Court of Western Australia seeking orders for the 'investigation' of particular matters arising out of the proceedings in the Family Court between 2006 and 2010.

5 On 15 April 2011, Kenneth Martin J ordered that a copy of the motion be served on the respondent's solicitors. This was done by the Acting Principal Registrar of the Supreme Court.

6 On 11 August 2011 the respondent's solicitors filed and served a summons seeking orders that the originating motion be struck out and that the action against the respondent be dismissed.

7 The respondent's strike out action was listed for hearing on 16 January 2012. By that time the appellant had filed, but not served, a chamber summons seeking to amend the orders in the originating motion. The chamber summons sought, inter alia, an order that the case be heard by an interstate judge. The respondent's strike out application was adjourned to allow consideration to be given to the appellant's chamber summons.

8 The strike out application was relisted before Beech J on 24 May 2012. His Honour also had before him the appellant's chamber summons dated 9 January 2012 and an amended chamber summons dated 22 May 2012. During the strike out application, the appellant sought the opportunity to put on further evidence in relation to the respondent's application. Beech J proposed that the parties be given a period of time to file any further affidavit evidence and written submissions, and then the judge would decide whether the matter would be determined on the papers or that an oral hearing would be required (ts 31). The appellant said that he did not agree to that course, as it would affect his ability to subpoena certain witnesses and certain documents from the Family Court (ts 32 - 33). Beech J said that these were matters that the appellant could address in the submissions that he was to file, and that his Honour would take these matters into account when determining whether the matter should be determined on the papers or after a further oral hearing (ts 38). His Honour ordered that:

(a) the appellant file and serve any further affidavits or submissions by 2 July 2012;

(b) the respondent file and serve any material in response by 16 July 2012; and

(c) thereafter, the matter be heard on the papers unless the court determined otherwise.

Beech J also refused to make an order appointing an interstate judge to hear the matter.

9 On 30 May 2012, the appellant filed an appeal notice against Beech J's interlocutory directions of 24 May 2012. (An amended appeal notice was filed on 27 July 2012.)

10 The appellant's case was required to be filed within seven days after the date on which the notice of appeal was filed. It was not.

11 The appellant eventually filed an application to extend the time for filing his case on 21 August 2012. The appellant, by his affidavit in support, sworn 21 August 2012, stated that:

(a) in the previous four and a half weeks (ie since about mid-July 2012) there had been a fasting period for Ramadan, during which he was not able to prepare the appellant's case and he had also not been physically well;

(b) the 'original case took so long to be heard in the court before three different judges'; and

(c) he had 'filed a similar case in the High Court against the same respondent' and he 'would like to wait and see how it is progressing'.

12 The second point was not explained and the court was not provided with a copy of any material said to have been filed in the High Court. As to the first point, the appellant said in oral submissions that Ramadan had commenced on 20 July 2012 and finished on 18 August 2012. It is to be noted that in his application, the appellant does not seek to extend the time for filing his case to a particular point in time, but rather seeks a general dispensation to file it at a time of his choosing.

13 At the hearing on 18 September 2012, the court ordered that the appellant have until 2 October 2012 to file and serve any further submissions and affidavits as to whether the appellant should be granted an extension of time to file the appellant's case and as to whether the court should dismiss the appeal under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules. The appellant filed an affidavit on 3 October 2012. In the affidavit the appellant said that he was suffering from damage to his nervous system and that the pain was particularly bad in June, July and August due to the cold weather. He summarised his symptoms as including 'painful crawling sensation, chronic fatigue, weakness of the muscles and feeling the heat and the cold greater than a healthy person'. The appellant requested further time until the weather became warmer so that he would be able to use his arm without too much pain.

14 The appellant attached two letters to his affidavit. The first was an unsigned letter from a neurologist dated 10 March 2009 which is addressed to a doctor whose name has been blanked out. The letter stated that the neurologist, on his limited examination, suspected that the appellant had demyelinating disease and that he had arranged for him to have urgent tests. The appellant did not furnish the court with any further medical evidence as to whether any tests were undertaken, his current condition, his diagnosis, or the nature or extent of any disabilities.

15 The second letter was a letter of referral from one doctor to another, bearing two dates, one is 21 March 2012 and the other is 13 August 2012. The letter does not provide any further information on the appellant's illness, and the reference to the reason for referral has been blanked out. In the affidavit, the appellant stated that he had blanked out references to any sensitive information.

16 The orders of Beech J were interlocutory. An interlocutory civil appeal must be commenced within 14 days after the date of the decision being appealed: pt 5 r 26 of the Supreme Court (Court of Appeal) Rules 2005 (WA). In this matter there was no contention that the appeal was not commenced within time in accordance with pt 5 r 27.

17 Once an appeal has been lodged in time, generally the principal considerations relevant to an application to extend time for taking a step in the appeal will be the length of time involved, the reasons for the breach of the rules and whether the respondent or the administration of the court's business would be prejudiced by granting the application. The merits of the appeal are also relevant if the court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time, although any assessment of the merits must take proper account of the limitations inherent in that process in this context: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, 520 - 521, 542 - 543; Hayes v Powers (Unreported, WASCA, Library No 990103, 5 March 1999); Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41 [8]. An appeal will ordinarily be devoid of merit for this purpose if it can be properly shown that none of the grounds has a reasonable prospect of succeeding within the meaning of pt 5 r 43(2)(g)(i) of the Court of Appeal Rules.

18 In our view the application for an extension of time should be dismissed. The appellant has not provided an adequate explanation for the delay in filing his case. Although the appellant stated that the illness referred to in the letter from the neurologist dated 10 March 2009 is 'on-going', he did not provide any medical evidence in that regard. Furthermore, there is no adequate explanation as to how or why the appellant's fasting for Ramadan, which in any event did not commence until approximately six weeks after his case was due to be filed, has precluded him from preparing his case in a timely fashion.

19 The decision appealed from is an interlocutory decision involving practice and procedure. A tight rein should be kept on appeals against decisions on matters of practice and procedure which do not affect substantive rights. Special restraint must be exercised when the interlocutory order under appeal is one concerning practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177; Dodds v Kennedy [2011] WASCA 32 [5]. The appellant has not filed or put before the court a draft of his case, or an outline of the case that he would seek to file if leave were granted. Nor has he sought otherwise to point to any error by Beech J.

20 It is a notorious fact that the respondent died on 2 October 2012. The litigation commenced and maintained by the appellant against the respondent appears to have been a personal proceeding against her. It is unnecessary, however, to decide whether the appeal has abated.

21 Having regard to the length of time involved, that there has been no adequate explanation for the delay, and that the business of the court would be prejudiced by an appeal from an interlocutory decision on practice and procedure in respect of which no alleged error has been articulated, the application for leave to extend time should be dismissed. Moreover, it is also an important consideration that the proper administration of justice requires any litigation involving claims against a judge to be dealt with in a timely and proper way.

22 The respondent, in her submissions, also contended that if the application for an extension of time is dismissed, the appeal should be dismissed pursuant to pt 5 r 43(2)(g)(ii) on the basis that the appellant has not obeyed the rules of court. In the circumstances recounted above, the appeal should be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2013] WASCA 14 (S)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2012] WASC 338

Practice and procedure - Costs - Turns on own facts

Criminal Appeals Act 2004 (WA), s 20

Appellant pay respondent's costs of the appeal fixed in the sum of $1,000

Ibrahim v Herring [2011] WASCA 266

Wilson v McDonald [2009] WASCA 39(S); (2009) 193 A Crim R 80

1 JUDGMENT OF THE COURT: These reasons deal with the respondent's application for an order for costs following the court's dismissal of the appellant's appeal. On 6 February 2013, the respondent sought costs fixed in the sum of $1,000. The appellant indicated he would oppose the costs order, and mentioned a decision of the President of the Court of Appeal which, he said, demonstrated that there should be no order as to costs. He was directed to identify the decision to which he referred in writing, and to provide written submissions.

2 Pursuant to the court's direction, the appellant provided written submissions in relation to the question of costs on 12 February 2013. He provided further written submissions, without leave, on 22 February 2013. In his written submissions of 12 February 2013, the appellant sought to contend that the decision to dismiss the appeal was erroneous. That plainly is not a consideration relevant to the question of costs. These submissions were not only irrelevant, but were inappropriate and offensive in their tenor and language.

3 The appellant also advanced, in effect, three reasons why there should be no order for costs against him. First, with reference to the decision of the President, he said:

In hearing for another reasons of a decision before the court of appeal, the court of appeal President McLeod J denied the State Solicitor Office cost because the case was under the leave to appeal Ibrahim v The Police Department. That case number is CACR 133/2010 (it was about two minor traffic infringement) she stated something resembling to (the court runs an open leave to appeal and if the respondent chose to join they would do that on their own cost) same in this case as it was under leave to appeal the court need to be consistent. I am using this court decision as one of the bases why respondents should not be awarded the cost. [sic]

4 Secondly, the appellant said that the appeal had 'abated' after the respondent had died, and that in any event he had 'made an effort' after the respondent had passed away to 'jointly discontinue the case'.

5 Thirdly, the appellant indicated that he did not 'agree' that the proposed sum of $1,000 for costs was reasonable.

6 In relation to the appellant's first contention, the court published reasons for judgment in case number CACR 133/2010 in Ibrahim v Herring [2011] WASCA 266. The court's reasons do not address the question of costs. The respondent's solicitors acknowledged, however, that in that matter the State Solicitor's Office had applied for costs and was refused. Nevertheless, that was a case where the Registrar's Notice to Attend with respect to the hearing of the appellant's application for an extension of time stated that the respondent was not required to attend the hearing.

7 This case is a civil proceeding whereas Ibrahim v Herring was governed by pt 2 div 3 of the Criminal Appeals Act 2004 (WA). As to the power to award costs conferred by s 20 of the Criminal Appeals Act, see Wilson v McDonald [2009] WASCA 39(S); (2009) 193 A Crim R 80. Neither the decision in Ibrahim v Herring, nor the particular circumstances of that case, have any application to the proper disposition of the costs application in this case. In this case, the appellant applied for an extension of time and the respondent properly resisted the application and also sought an order that the appeal be dismissed pursuant to Pt 5 r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The respondent was the successful party. The usual rule in civil proceedings is that the successful party is awarded costs.

8 Secondly, it is unnecessary to determine whether the appeal abated after the death of the respondent. The hearing of the application to extend time, and the respondent's application to have the appeal dismissed for non-compliance with the rules, occurred on 18 September 2012. Although on that occasion the appellant was given liberty to provide further affidavits and written submissions by 2 October 2012, and for the respondent to file and serve any material in reply by 9 October 2012, the bulk of the costs incurred by the respondent would have been incurred prior to her death on 2 October 2012. Even if the appeal had abated on 2 October 2012 (which it remains unnecessary to decide) there would be no occasion for the respondent to be deprived of costs prior to then.

9 Also, although the appellant said that he made an effort to have the appeal discontinued, there was no application to this court to that effect and, even if there had been, it could not be supposed that the application to discontinue would have resulted in the appellant not being ordered to pay costs prior to that date.

10 In relation to the appellant's third contention, in our view, the costs claimed are reasonable in relation to the costs incurred by the respondent prior to 2 October 2012 (compare, for example, item 23(e) of the table to cl 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)).

11 In all the circumstances, the usual rule should apply. The court will order that the appellant pay the respondent's costs fixed in the sum of $1,000.

12 The appellant did not have leave to file the additional submissions of 22 February 2013, and it is not appropriate to take them into account. Even if they were taken into account, there is nothing in them which would displace the conclusion reached above.

1. The appellant do pay the respondent's costs of the appeal, fixed in the sum of $1,000.