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AMB -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 55 | Case summary | Zoe
(These reasons were delivered orally. They have been edited to correct matters of grammar and infelicity of expression.)
[2]
By an application in an appeal filed 25 November 2025 the appellant seeks what is described as 'an order to set aside a springing order', which led to his appeal being dismissed. While described in that way, the appellant is actually seeking an extension of time to comply with Buss P's self‑executing order made on 16 January 2025.
The proceedings have an unfortunate history. Despite several extensions of time, and much assistance and guidance from Buss P and the registry of this court, the appellant's previous counsel was unable to file an appellant's case on behalf of the appellant that complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
Eventually, having given the appellant multiple opportunities to file a compliant appellant's case, on 16 January 2025 Buss P made a self‑executing order, which operated on 6 February 2025. His Honour made a further order the following day which, among other things, recognised that the self‑executing order had operated to bring about the dismissal of the appeal. Thereafter, on 10 February 2025, the acting Court of Appeal registrar issued a certificate of conclusion of criminal appeal confirming that the appeal stood dismissed due to the appellant not having filed a compliant appellant's case by 4.00 pm on 6 February 2025.
Some nine months later, the appellant filed the application in an appeal styled as an application seeking to set aside the springing order. The appellant's then counsel also filed a draft appellant's case, which continued to be non‑compliant with the Rules.
On 16 March 2026, the application in an appeal came before us for hearing. The respondent did not oppose the application and conceded there was arguable merit in the proposed grounds of appeal. The respondent accepted that it would be unfair to the appellant if the time for complying with the self‑executing order was not extended. In the course of the hearing on 16 March 2026 the appellant's then counsel informed the court that she intended to have alternate counsel briefed to prepare a compliant appellant's case. The court made orders requiring a compliant minute of proposed appellant's case to be filed by 13 April 2026, and adjourned the application to today.
On 16 April 2026, the court further extended time to file the minute of proposed appellant's case to 17 April 2026. On 17 April 2026, a draft appellant's case was filed, by different counsel, in terms which comply with the Rules.
The principles that apply on an application to extend the time for compliance with a self‑executing order are set out in detail in Wharton v The Queen [No 2] [2015] WASCA 176 [48] ‑ [52], [56], [60], [62]; A v C [No 2] [2015] WASCA 199 [2] ‑ [4], [16] - [20]; and ANSA Enterprises Pty Ltd v St James Finance Corporation Pty Ltd [2023] WASCA 32 [27] ‑ [35]. Wharton also addresses the statutory framework relevant to the present application [40] - [47]. It is not necessary to repeat any of those principles. It suffices to state that we have had regard to those principles and have applied them in deciding that in the present case it is in the interests of justice that the time for compliance with the self‑executing order should be extended.
We are conscious of the importance of the principle of finality, that peremptory orders are made to be obeyed and also that, in the context of a criminal appeal, there is a strong public interest in the timely disposition of appeals and the human cost to victims and their families as a result of undue delay. That said:
The egregious delays in this matter were not the fault of the appellant himself. Nor was the failure to comply with the self‑executing order attributable to the appellant. Regrettably, the non‑compliance is entirely due to actions - and inactions - of the appellant's former counsel.
As the respondent rightly and quite properly concedes, there is arguable merit in the appeal. For that reason, again quite properly, the respondent does not oppose the application for an extension of time to comply with the self‑executing order.
In the circumstances it may be inferred that there is real prejudice that may result to the appellant if time is not extended. The appellant's right to appeal will have been exhausted through no fault of his own but rather due to the actions - and inactions - of the appellant's former counsel.
The appellant, by his new counsel, has prepared a compliant minute of proposed appellant's case. Accordingly, if there is an extension, an appellant's case may be filed forthwith and the appeal may proceed in the usual way.
[3]
While the circumstance that there is arguable merit in the appellant's appeal cannot be permitted effectively to insulate the appellant from the consequences of a failure to comply with a peremptory order of the court, this is an unfortunate case with a regrettable history that cannot be overlooked. In all the circumstances it would not be in the interests of justice to allow the appeal to stand dismissed. We are satisfied that it is in the interests of justice that the appellant be granted an extension of time to comply with the self‑executing order of 16 January 2025.
For the foregoing reasons we make orders as follows:
The time for compliance with pars 1 and 2 of the order of the court made 16 January 2025 (namely, that the appellant file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA)) is extended to 4.00 pm on 21 April 2026.
The certificate of conclusion of criminal appeal dated 10 February 2025 is set aside.
The appellant may comply with the order of the court made 16 January 2025, as varied by par 1 above, by filing and serving an appellant's case that is substantially in the form of the minute of proposed appellant's case filed 17 April 2026.
[4]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.