Practice and procedure - Application to admit additional evidence - No grounds made out - Application for suspension order - No basis for order - Application for appeal to be heard with other appeals premature - Appellant's case out of time - Springing order made - Turns on own facts

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Allen v Lillimagi [2011] WASCA 186

Allen v Perpetual Trustees [2011] WASCA 187

1 JUDGMENT OF THE COURT: On 21 October 2011, we heard three matters in connection with this appeal - two interim applications by the appellant and a registrar's notice for the appellant to show cause why the appeal should not be dismissed for failure to file and serve the appellant's case.

2 We dismissed the appellant's interim applications and, in respect of the registrar's notice to show cause, made a springing order requiring the filing and service of the appellant's case by 31 October 2011. We said we would provide reasons for our decision. These are the reasons.

3 The appeal arises out of a mortgagee's action for possession. The appellant and Brett Robert Allen granted to the respondent a mortgage over a property in Toledo Circuit, Port Kennedy. The respondent subsequently commenced proceedings seeking an order for possession of the property, alleging default by the appellant and Mr Allen in payment of money due under the mortgage.

4 On 28 June 2011, Master Sanderson made an order that the appellant deliver up vacant possession of the property to the respondent within 28 days. On 8 August 2011, the appellant commenced this appeal against the master's order.

(a) an interim application by the appellant, dated 7 September 2011, to adduce additional evidence;

(b) a further interim application by the appellant, also dated 7 September 2011, for this appeal to be heard with CACV 87 of 2011 and two other proceedings, and for an injunction;

(c) a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to file and serve the appellant's case as required by the rules.

6 Turning immediately to the last of those matters, pursuant to r 32 of the Court of Appeal Rules the appellant's case was due to be filed and served on or before 12 September 2011. That requirement was specifically drawn to the appellant's attention in a letter from the court dated 15 August 2011. It has not been complied with. There is no explanation on affidavit from the appellant as to why the appellant's case has not been filed. It is now more than five weeks out of time. From what we were told by the appellant from the bar table it seems that the appellant was under some misapprehension as to what she was required to file. Having very recently been provided with some further information by the Court of Appeal office, the appellant said she would file and serve the appellant's case by 24 October 2011.

7 Although the delay is substantial, we would not dismiss the appeal on this occasion but would order that the appellant file and serve the appellant's case on or before 31 October 2011, failing which the appeal is dismissed.

8 The application by the appellant for additional evidence to be admitted on the appeal is accompanied by an affidavit which is also dated 7 September 2011. The affidavit is, with respect, extremely difficult to understand. It does not identify the evidence the appellant seeks to have admitted or the grounds upon which the appellant says further evidence should be admitted.

9 A number of documents are attached to the affidavit and we were informed on the hearing of the appeal that they are part of the evidence which the appellant seeks to have admitted. Those documents consist of a copy of the master's reasons for decision in another matter in which the appellant is a party (currently on appeal in CACV 87 of 2011), a document prepared by the appellant commenting on the master's decision in that matter, a document which appears to be a draft defence to the respondent's claim in those other proceedings, a copy of a letter from a third party to other third parties relating to an unidentified property, a copy of a letter from the appellant to Centrelink, six notices from Advantedge Financial Services Pty Ltd to the appellant and Mr Allen notifying them that loan repayments have been dishonoured by their bank, and a letter from solicitors for the respondent informing the appellant and Mr Allen that the respondent has taken possession of a different property. The letter is annotated in what we assume to be the appellant's handwriting.

10 The master's reasons for decision in the other proceedings are plainly not a matter of evidence and it is not apparent how they could be relevant to this appeal. It is also very difficult to conceive how any of the other documents could be relevant to the appeal. The basis upon which it is contended they are relevant does not appear from the appellant's affidavit and, with respect, the position was not made any clearer on the hearing of the application.

11 In addition, we were told by the appellant that there were a number of further documents which she sought to have admitted as evidence on the appeal, consisting of emails exchanged between the parties up to the present day. That material was not before us. Its relevance is not apparent and was not explained.

12 The application to admit additional evidence must be dismissed.

13 The remaining application by the appellant seeks, first, an order that this appeal be heard with CACV 87 of 2011 and with appeals said to have been filed against decisions in CIV 1433 of 2011 and CIV 2633 of 2011 respectively, and, secondly, an injunction. It is again accompanied by an affidavit of the appellant which is extremely difficult to understand. We should also say that the reference in the application to CIV 2633 of 2011 was acknowledged by the appellant to be an error. The appellant intended to refer to CIV 2633 of 2010, which involves an order for possession obtained by the respondent in respect of another property in Toledo Circuit. That clarification did not, however, explain why it should be heard at the same time as the other matters as the property in question in CIV 2633 of 2010 was owned by a third party and the appellant is not a party to those proceedings.

14 Turning first to the application for an injunction, the affidavit does not describe the nature, terms or purpose of the injunction sought. Indeed, it appears (albeit, it is far from clear) that what the appellant actually wants is the suspension of the enforcement of the order for possession made by the master and also of the various orders made in respect of the properties which are the subject of the other proceedings referred to.

15 The application must be dismissed. In this appeal, an application by the appellant for a suspension order was dismissed by this court on 26 August 2011, on the basis that no reason had been provided which would justify such an order: Allen v Perpetual Trustees [2011] WASCA 187. It is again the position that the appellant has failed to establish any grounds for a suspension order. So far as the application seeks a suspension order in relation to CACV 87 of 2011, or in relation to any appeal brought in respect of CIV 1433 of 2011, it is misconceived. Any such application must be brought in the particular appeal to which it relates. In that regard, we should note, however, that in CACV 87 of 2011 such an application was dismissed on 26 August 2011: Allen v Lillimagi [2011] WASCA 186. So far as CIV 2633 of 2010 is concerned, any application for a suspension order is a matter for the appellant in those proceedings.

16 The application for the various matters to be heard together is also misconceived. The question of whether this appeal should be heard with CACV 87 of 2011 is premature. Any consideration of such a course must await the filing and service of the appellant's case and the respondent's answer in each of those appeals. Having said that, it is very difficult at present to see a basis upon which it would be appropriate to hear the appeals together. This appeal concerns an order for possession granted to a mortgagee. CACV 87 of 2011 concerns an order for sale in lieu of partition, pursuant to s 126(1) of the Property Law Act 1969 (WA), of two other properties granted to a co-owner of those properties.

17 Similarly, any question as to whether this appeal should be heard with any appeal brought in respect of decisions in CIV 1433 of 2011 or CIV 2633 of 2010 is premature. Again, any consideration of such a course must await the filing and service of the appellant's case and the respondent's answer in each of those appeals.

18 In addition, the other parties to those appeals are entitled to be heard on such an application. They were not before us and presumably they had not been served with this application. If any such application is brought in the future, it will be necessary for all of the other parties to those appeals to be served with the application.

19 It was for those reasons we made the following orders:

(a) unless on or before 31 October 2011 the appellant do file and serve the appellant's case, the appeal be dismissed and the appellant pay the respondent's costs of the appeal to be taxed;

(b) the appellant's application dated 7 September 2011 for this appeal to be heard with CACV 87 of 2011, CIV 1433 of 2011 and CIV 2633 of 2010 and for an injunction is dismissed;

(c) the appellant's application dated 7 September 2011 for additional evidence to be admitted on the appeal is dismissed; and