DUSOL PTY LTD TRADING AS B W DUCKHAM & CO -v- DELLA-VEDOVA AND SONS [2025] WASCA 185 (11 December 2025)

1. Pursuant to r 31B(2)(b)(i) of the Court of Appeal Rules the appellant should have filed and served a compliant appellant's case by 11 September 2025 (ie approximately 3 months prior to the hearing in this court).
2. In terms of the procedural history of the appeal to this point:
   1. On 7 August 2025 the Court of Appeal office informed the appellant of the requirement to file a compliant appellant's case by 11 September 2025. The appellant was provided with comprehensive information so as to be in a position to prepare a compliant appellant's case.
   2. The appellant's case was not filed by 11 September 2025.
   3. On 12 September 2025 Mr Duckham wrote to the Court of Appeal office. Mr Duckham informed the Court of Appeal office that he had been hospitalised on 10 and 11 September 2025. Mr Duckham stated that every effort was being made to finalise the required papers for 15 September 2025.
   4. The appellant purported to file an appellant's case on 15 September 2025 by email. Mr Duckham was informed that the document needed to be filed through the eCourts portal. Moreover, the appellant had to pay the applicable fee before any document could be considered for filing as an appellant's case. There was a further attempt to file an appellant's case by email on 22 September 2025. Again the Court of Appeal office informed Mr Duckham of the mandatory requirements of filing through the eCourts portal and payment of the applicable fee.
   5. The appellant again purported to file an appellant's case on 14 October 2025. It was not accepted for filing. On 16 October 2025 the Court of Appeal registrar extended the time for the appellant to file and serve an appellant's case to 4.00 pm on 30 October 2025.
   6. On 30 October 2025 Mr Duckham informed the Court of Appeal office that the appellant's case had been 'amended' and 'corrected'. It was said to be 'ready to file'. In fact a purported appellant's case dated 30 October 2025 was lodged for filing on 7 November 2025. On 10 November 2025 the appellant was informed that the appellant's case had not been accepted for filing on the basis that it did not comply with r 32 of the Court of Appeal Rules.
3. On 11 November 2025 Mr Duckham wrote to the associate to the Court of Appeal registrar by email in the following terms:

By notification dated 10th November 2025 we were advised that the Apellants Case (sic) has not complied with Rule 32 and requesting it be re-filed.

We are only too glad to do this however, we are uncertain as to what precise particulars of rule 32 have not been correctly complied with.

You will appreciate it is essential for this to be advised in order to move forward. Would appreciate your advising as to the same.

It is perceived that your communication dated 10th November is a provisional decision within the meaning of rule 19. It would appear as appropriate therefore that reasons be made available within the 5 working days contemplated by rule 19(3).

1. Mr Duckham's email of 11 November 2025 manifested a number of fundamental misconceptions. Among those was the nature of the Court of Appeal registrar's decision to refuse to accept the appellant's case for filing. It was not a 'provisional decision' but rather a decision pursuant to r 10(1) of the Court of Appeal Rules. In any event, r 19, to which Mr Duckham referred, was repealed with effect from 23 May 2025. In due course the Court of Appeal office informed Mr Duckham of his misapprehension concerning r 19. In terms of the Court of Appeal registrar's reasons for the refusal to accept the appellant's case for filing the Court of Appeal office referred the appellant to a letter dated 16 October 2025. That letter provided a detailed account of the requirements for a compliant appellant's case.
2. The Court of Appeal registrar then issued the Registrar's Notice to Attend to show cause why the appeal should not be dismissed in accordance with r 43(2)(g)(ii) of the Court of Appeal Rules. The appellant, following the issue of that Registrar's Notice to Attend, filed the application for review of the Court of Appeal registrar's decision to refuse to accept the appellant's case for filing. In identifying the grounds for review the appellant stated that particulars of non-compliance with r 32 had been requested but had not been provided.

Application for review of the Court of Appeal registrar's decision.

1. In support of its application for review of the Court of Appeal registrar's decision the appellant submitted that reasons for the decision were requested but not provided. It was said to be trite that a 'presiding officer' must give reasons for a decision.
2. The Court of Appeal registrar may refuse to accept for filing a document required or permitted by the Court of Appeal Rules if the document does not obey the rules (r 10(1)). An appellant's case is such a document (r 31B(2)). Accordingly, the registrar was entitled to refuse to accept for filing a purported appellant's case that did not comply with the rules. Such a refusal is a 'reviewable decision' for the purpose of r 15 (r 15(1A)). A person who is dissatisfied with the refusal may apply to set aside or vary the decision (r 15(1)). The application must be made by filing a Form 13 (r 15(2)). The application may be determined by a single judge of appeal (r 16). However, that does not limit the jurisdiction of the Court of Appeal or prevent the Court of Appeal from exercising the jurisdiction (r 5A(1)). Anything that a single judge of appeal may do under the Court of Appeal Rules may be done by the Court of Appeal in the same manner as a single judge (r 5A(2)).
3. The single judge of appeal (or, where applicable, the Court of Appeal) deals with the review application by 'consider[ing] afresh the matter that was decided by the registrar' (r 16).
4. This statutory framework has implications for the appellant's contention that review is justified because the Court of Appeal registrar failed to give reasons as requested. First, as the court must determine the matter 'afresh', the court conducts a fresh hearing of the matter rather than proceeding by way of appeal in which appellable error by the registrar must be established. Second, there is no obligation on the registrar to give reasons for a decision to refuse to accept a document for filing (although it may often be desirable to do so). The relevant obligation is on the filing party to ensure that the document sought to be filed is compliant. Third, a party does not have a right to be heard by the registrar before the registrar refuses to accept a document for filing. See Wilden Pty Ltd v Green [No 4].[4]
5. Accordingly, the sole ground advanced by the appellant in support of its application for review of the Court of Appeal registrar's decision is misconceived. The Court of Appeal registrar had no obligation to give reasons for the decision to refuse to accept the purported appellant's case for filing on the basis that it did not comply with r 32. Instead, on the review application before this court it is necessary for the appellant to demonstrate that the purported appellant's case is compliant with r 32 of the Court of Appeal Rules.
6. The appellant submitted, in the alternative, that it was 'not a sustainable proposition' that r 32 had been infringed. In this respect the appellant's submissions went no higher than to assert that the purported appellant's case complied with the form requirements of r 32 so far as it contained the appellant's grounds of appeal; the appellant's submissions; the appellant's legal authorities; orders wanted; a draft chronology; and appeal book indexes.
7. In considering afresh whether the purported appellant's case complies with r 32 of the Court of Appeal Rules it suffices to look to the appellant's grounds of appeal. These meander over three pages. Eight grounds are identified under headings: 'Prima Facie Entitlement'; 'Participation in Assessment Process'; 'Accord and Satisfaction'; 'Requirement for Response (sic) to do Equity/Unconscionable Conduct'; 'Costs Order Against Appellant'; 'Personal Costs Order BW Duckham'; 'Observations as to Mr Duckham'; and 'Generally'.
8. While, as to some of the purported grounds of appeal, there is an allegation of error ‑ and in some cases an indication of whether the alleged error is one of fact or law ‑ many of the so‑called grounds roll up a miscellany of matters (eg grounds 1 ‑ 3, 5). Ground 4 contains an allegation of unconscionability without any particularity. Grounds 6 and 7 are directed to the costs order and findings against Mr Duckham (who is not a party to the appeal). Ground 8 is headed '[g]enerally' and simply states '[r]eference is made to His Honour's comments on pleadings and as to other aspects'.
9. Rule 32(4) of the Court of Appeal Rules provides that an appellant's grounds of appeal:

(a) must contain all of the grounds of appeal on which the appellant intends to rely at the hearing of the appeal; and

(b) must state the grounds, and concise particulars of them, succinctly in numbered paragraphs; and

(c) must, for any ground that alleges an error by the primary court, state whether it is:

(i) an error of fact; or

(ii) an error of law; or

(iii) an error of mixed fact and law.

1. In Chang v Legal Profession Complaints Committee we stated:

The point of the requirements in [r 32(4)(b) and r 32(5)(a) of the Court of Appeal Rules] is to oblige an appellant to identify clearly and with precision the issues requiring this court's determination. The Rules seek to avoid the waste of the resources of respondents and this court in having to sift through long rambling documents in a struggle to identify all of the issues and hunt for a potentially meritorious point.[5]

1. Grounds of appeal are an essential analytical tool for the court. The grounds identify the issues for determination. Grounds of appeal are meant to be stated succinctly. Prolix grounds, such as are found in pars 1 ‑ 3 and 5 ‑ 7 of the purported appellant's case are unhelpful. Grounds of appeal should be shortly and simply stated. Ordinarily they should not exceed two or three sentences. So too rolled up grounds of appeal of the kind in the purported appellant's case are unhelpful. Each issue in an appeal should be succinctly identified in a separate ground. If an alleged error is put on more than one legal basis, concise particulars may be provided identifying the different ways in which it is contended that there was an error. Contrary to the view of the drafter of the purported appellant's case, the practice of repeating findings on which the appellant relies, with the implication that these findings undermine another finding said to be in error, ought not to be adopted. Grounds of appeal are not the place for an appellant to advance its argument. Argument and advocacy belong in the written submissions that accompany the grounds of appeal in the appellant's case.
2. In short, grounds of appeal should identify that there has been legal or factual appellable error of a recognised genre that falls to be corrected which entitles the appellant to the orders or relief that she or he seeks.
3. The grounds of appeal in the purported appellant's case lodged 7 November 2025 conspicuously failed to meet the requirements for a ground of appeal under r 32(4) of the Court of Appeal Rules. There was no proper identification of the issues for determination. The respondent and the court were left to speculate on the precise error that was being alleged. In this respect the Court of Appeal registrar correctly rejected the purported appellant's case for filing as it did not comply with an important requirement of the Court of Appeal Rules. The appellant's application for review filed on 20 November 2025 had to be dismissed.

The consequences of failure to file a compliant appellant's case

1. Rule 43(2)(g)(ii) of the Court of Appeal Rules permits the court to dismiss an appeal if the appellant has not obeyed the rules or an order made under the rules. The failure to file a compliant appellant's case within the time permitted by the Court of Appeal Rules, as extended by the Court of Appeal registrar's order made 16 October 2025, enlivened the power to dismiss the appeal.
2. We were not satisfied that it was presently in the interests of justice that the appeal be dismissed for failure to file an appellant's case. It was in the interests of justice that the appellant be afforded an opportunity to file an appellant's case rather than have its appeal finally dismissed immediately without a hearing on the merits. The appellant has attempted to file an appellant's case. This is not a case where the appellant is completely ignoring the procedural requirements of the court. The respondent did not point to any particular prejudice that has been suffered by the appellant's delay to date in filing an appellant's case.
3. In all the circumstances we were of the view that the appellant should be provided with a further opportunity to file a compliant appellant's case.
4. However, given the history of the appeal - and in particular that the appellant had already been afforded a substantial extension of time to file its appellant's case ‑ we considered that this should be a final opportunity to file a compliant appellant's case. The extension of time was to be subject to a self-executing order. If the appellant failed to avail itself of this opportunity, and did not file a compliant appellant's case by the extended time we provided for, the appeal would automatically be dismissed.
5. In deciding that the extension of time was to be subject to a self‑executing order we considered and applied the principles set out in Firmware Technologies Inc v Asia Platinum Group Ltd[6] and Durolek v Pier (WA) Pty Ltd [No 2].[7] We were satisfied, in particular, that a self-executing order was necessary to enable the court to hear and determine the appeal fairly and justly. This court cannot carry out its appellate function without properly formulated grounds of appeal and the other matters provided for in a compliant appellant's case. The appellant has already been provided with, and failed to take advantage of, a sufficient prior opportunity to file and serve an appellant's case. In all the circumstances we were satisfied that there is no other available sanction which is appropriate and sufficient to enable the court to hear and determine the appeal consistently with the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).
6. The appellant sought until the middle of January 2026 to file its appellant's case. Having regard to the potentially serious consequences of the self-executing order, we allowed an extension of time for the period sought by the appellant. In considering that extension we took into account the upcoming break over the festive season as well as the time that has already passed for the appellant to prepare the appellant's case.

1. It was for the foregoing reasons that we ordered that:

1. The appellant's application for review dated 20 November 2025 in appeal CACV 89 of 2025 is dismissed. 2. In appeal CACV 64 of 2025:

(a) The time for the appellant to file and serve an appellant's case (such appellant's case to be compliant with the Supreme Court (Court of Appeal Rules) 2005 (WA)) is extended to 4.00 pm on 15 January 2026; and the appellant is to file and serve the appellant's case by that time.
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> (b) If the appellant does not comply with order 2(a): > > > (i) the appeal is dismissed;
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> > (ii) the appellant is to pay the respondent's costs of the appeal, including any reserved costs, such costs to be assessed.

1. The appellant is to pay the respondent's costs of the review application fixed in the sum of $750.
2. The costs order followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Referred to below as the 'Court of Appeal Rules'.

[2] Della-Vedova and Sons v Dusol Pty Ltd trading as B W Duckham & Co [2025] WASC 160 [169].

[3] Della-Vedova and Sons v Dusol Pty Ltd trading as B W Duckham & Co [2025] WASC 160 (S).

[4] Wilden Pty Ltd v Green [No 4] [2016] WASCA 195 [18], [35], [38] - [40].

[5] Chang v Legal Profession Complaints Committee [2021] WASCA 86 [52].

[6] Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 [5], [42], [48].

[7] Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138 [107] - [108], [111] - [113].