Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : DIPLOMA CONSTRUCTION (WA) PTY LTD -v- PRAVENKAV GROUP PTY LTD [2013] WASC 138

Appeal - Application by respondent for extension of time to file notice of intention - Standing of respondent to bring interim application - Turns on own facts

Supreme Court (Court of Appeal) Rules 2005 (WA), r 5, r 44(1)

(This judgment was delivered extemporaneously on 5 November 2013 and has been edited from the transcript.)

1 The respondent has filed an application for time to file its notice of intention to be extended to 5 August 2013. The situation is that the appellant commenced an appeal on 7 May 2013. When it commenced the appeal, it had been deregistered. The appeal was not back in existence until the appellant was reinstated and an order was made by the master on 8 October 2013 validating the commencement of the appeal and the steps taken in the appeal to that date. That was an order made under s 601AH(3) of the Corporations Act 2001 (Cth).

2 In the period when the appellant was deregistered, the respondent filed the respondent's notice of intention on 5 August 2013. The appeal was listed for hearing on 14 October 2013. However, the registrar, who became aware of the fact that the appellant had been deregistered, pointed out that certain steps had to be taken by 1 October 2013 if the hearing date on 14 October was to be preserved. A letter dated 2 September 2013 from the associate to the registrar to the parties read in part:

Therefore, in order to preserve the hearing date, the Registrar considers that the following steps would be required once the appellant is reinstated:

• the respondent to file a respondent's answer;
• substituted white appeal books containing the respondent's answer to be refiled;
• if the respondent requires any further documents in the green appeal book, the respondent to file a supplementary green appeal book.

These steps need to be completed by 1 October 2013 at the latest.

3 However, it was not until 8 October 2013 that an order was made under s 601AH(3) of the Corporations Act by the master validating the commencement of the appeal and the steps taken in the appeal to that date.

4 The appellant opposes the respondent's application. First, it argues that there is no power to extend time because of r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). The argument is that because the respondent is not a party within the terms of that rule, it is not entitled to make this application at all. However,

r 5(2)(a) of the Court of Appeal Rules provides that for the purposes of r 5(1), a reference in the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules) to the Supreme Court Rules is to be taken as including a reference to the Court of Appeal Rules unless the context requires otherwise. Rule 5(1) of the Court of Appeal Rules says that the Court of Appeal Rules must be read with the Supreme Court Rules. Order 3 r 5(1) of the Supreme Court Rules states that the court may, on such terms as it thinks just, by order, extend or abridge the period within which a person is required or authorised by the Supreme Court Rules or by any judgment, order, or direction to do any act in any proceedings. The respondent is a person (see Interpretation Act 1984 (WA) s 5 'person'). The argument that there is no standing for the respondent to make an application to extend time has no merit. The authority to extend the time is conferred on this court by O 3 r 5(1) of the Supreme Court Rules.

5 There is also an argument that there has been no explanation for the late filing of the notice of intention. As I have already indicated, in fact, the notice of intention did not have to be filed at the time that it was filed because there was no valid appeal on foot, but in fact, the respondent was put in default by reason of the master's validation order on 8 October 2013. It is clear that this situation should be regularised and that time should be extended to the date in August when the respondent's notice of intention was filed. On that basis, the respondent's application should be granted.