SOURAKI AZAD -v- MEDICAL BOARD OF AUSTRALIA [2025] WASCA 123 (22 August 2025)

1. 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 pm on 30 April 2025; and the appellant is to file and serve the appellant's case by that time. 2. If the appellant does not comply with order 1:

(a) the application for an extension of time to appeal is dismissed;
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> (b) the application for leave to appeal is dismissed;
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> (c) the appeal is dismissed;
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> (d) the appellant is to pay the respondent's costs of the appeal, including any reserved costs, such costs to be assessed if not agreed.

1. The costs of today be reserved.
2. The appellant attempted to lodge an appellant's case at 11.43 pm on 30 April 2025. However, by that time the springing order had already operated to dismiss the appeal. Further, the document purporting to be an appellant's case which the appellant attempted to file did not comply with the Rules and was not accompanied by the required application fee.
3. On 10 July 2025, the appellant sought an extension of time in which to file and serve his appellant's case. That application was supported by the appellant's affidavit which explained the challenges presented by his parlous financial situation and other difficult personal circumstances. The affidavit attached the appellant's case which the appellant proposed to file if given an extension of time.
4. On 15 July 2025, the court made orders for the filing of any further affidavits and written submissions in relation to the extension application. Those orders provided for the court to make a decision on the application on the basis of the documents filed and without listing the matter for a hearing, pursuant to r 5A and r 7(1)(b) of the Rules.
5. The principles governing the determination of an application to extend time for compliance with a springing order were summarised by this court in A v C [No 2],[1] in the following terms:

It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity ...

There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:

(1) the circumstances in which the springing order came to be made;

(2) the reason for non-compliance with the springing order;

(3) the prejudice to the defaulting party if the time were not extended; and

(4) the prejudice to the other party if the time were extended.

It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]

(citations omitted)

1. The springing order in this case was made after considerable delay by the appellant in filing an appellant's case. About three months had passed since the commencement of the appeal, which was itself instituted three months after the time allowed for doing so. At the hearing on 21 March 2025, the appellant sought and was granted an extension of time to 30 April 2025 to file his appellant's case. That was a generous extension of five and a half weeks which was given having regard to the potentially serious consequences of the springing order which the court proposed to make.[2]
2. There are some factors which count in favour of the grant of a further extension of time for the appellant to file an appellant's case. The appellant did not simply ignore the springing order but attempted to file an appellant's case shortly after it operated to dismiss the appeal. His personal circumstances provide some explanation for his difficulty in complying with the springing order. The Tribunal orders which are the subject of the appeal suspend the appellant's registration as a medical practitioner, and so have a serious impact on the appellant. There would be no particular prejudice to the respondent if an extension of time were granted.
3. However, it is now over seven months since the appeal was instituted and almost a year since the Tribunal made the primary orders. The appellant has not attached to his affidavit in support of the application a form of appellant's case which is capable of being accepted for filing. The document which was attached to the appellant's affidavit does not comply with the Rules, in particular the requirement in r 32(4)(b) of the Rules for a succinct statement of the grounds, and concise particulars of them. The document attached to the appellant's affidavit contains 43 proposed grounds of appeal running over 23 pages.
4. Generally speaking, the proposed grounds of appeal do not assert particular material errors in the Tribunal's decision. Rather, they contain a series of scandalous and unsupported allegations of serious misconduct by the Supplementary President of the Tribunal. The grounds of appeal do not on their face disclose any cogent basis on which the appeal might be allowed. The length of the grounds makes it difficult to exclude the possibility of a hidden meritorious point. However, as we observed in Chang v Legal Profession Complaints Committee:[3]

The point of the requirements in [r 32(4)(b) and r 32(5)(a) of the 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.

1. In the above circumstances, we are not satisfied that it is in the interests of justice to grant the appellant an extension of time to file an appellant's case. The document annexed to the appellant's affidavit does not comply with the Rules and does not appear to disclose any reasonably arguable basis for setting aside the Tribunal's orders. If the appellant lodged the document annexed to his affidavit, it would not be appropriate to accept the document for filing as his appellant's case. The history of the matter leaves us with no confidence that, if a further extension of time were granted, the appellant would, within any reasonable time, prepare a compliant appellant's case which sets out reasonably arguable grounds of appeal. In all the circumstances, the application for an extension of time to file and serve an appellant's case should be refused.
2. We therefore make the following orders:
   1. The appellant's application in an appeal filed on 10 July 2025 is dismissed.
   2. The appeal remains dismissed pursuant to order 2 of the orders made by this court on 21 March 2025.

It is unnecessary to make any order as to the costs of the present application in an appeal, as they will form part of the costs of the appeal which is the subject of order 2(d) of the orders made on 21 March 2025.

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

[1] A v C [No 2] [2015] WASCA 199 [2] - [4]. See also ANSA Enterprises Pty Ltd v St James Finance Corporation Pty Ltd [2023] WASCA 32 [27] - [35].

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