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[2009] WASCA 101
appellant. Order that the appellant file and serve a re-amended appeal notice specifying the particular orders appealed against by 29 June 2009; extension of time granted so that the appellant's case is to be...
The Court of Appeal (Newnes JA) granted a limited extension of time to an unrepresented appellant to file and serve the appellant's case (until 24 July 2009), directed re-amendment of the defective appeal notice by 29 June 2009, listed the appeal for directions on 7 August 2009, and declined to recommend legal aid. The Court emphasised that appeals must be prosecuted with reasonable expedition and will not be left in limbo indefinitely (Newnes JA [5], [12], [14], [16]).
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1,975 words · generated 24/07/2026
This is an interlocutory decision of the Western Australian Court of Appeal (Newnes JA) concerning an application by an unrepresented appellant (TET) for an extension of time to file and serve the appellant's case and a request that the Court recommend to the Legal Aid Commission that legal aid be granted to prepare the appellant's case. The appeal arises from Family Court proceedings and the appeal documents were filed in early 2009.
2 cited instruments linked from this judgment.
Key chronology and facts from the judgment:
The practical result: a limited, finite extension was given, directions made to correct the defective notice, and the Court refused to make any recommendation to the Legal Aid Commission.
The judgment sets out two controlling considerations.
First, the duty of the appellant to prosecute an appeal with reasonable expedition and to comply with the court's procedural rules. Newnes JA stated that once an appeal is commenced it is incumbent on the appellant to prosecute it with reasonable expedition and in conformity with the rules, including the time limits (Newnes JA [12]). That principle underpinned the Court's reluctance to allow an indefinite adjournment of the appeal.
Second, the Court exercised its discretion in light of the appellant's specific circumstances. Although the appellant had not shown specific prejudice to the respondent from an extension, the Court acknowledged the intangible prejudice a respondent suffers from having an appeal looming over them (Newnes JA [13]). The Court also noted the appellant's personal circumstances and that she was self-represented. Weighing these factors, Newnes JA considered a finite, relatively generous extension appropriate: longer than would normally be granted, but not open-ended (Newnes JA [14]).
On the request to recommend legal aid, the Court distinguished its function from that of the Legal Aid Commission: applications for legal aid are to be made to the Commission and determined under the Commission's statutory regime; it is not the Court's role to make recommendations about whether legal aid should be granted (Newnes JA [16]).
The Court therefore balanced the procedural imperative to keep appeals moving against the appellant's personal circumstances and the absence of demonstrated specific prejudice to the respondent, resulting in a conditional, time-limited indulgence rather than an indefinite adjournment (Newnes JA [12]–[14]).
Before: The judgment does not purport to change legal doctrine. It applies well-established procedural principles: appellate matters must be prosecuted with reasonable expedition; courts have a general discretion to extend time, and that discretion must be exercised with attention to prejudice and the need to finalise proceedings.
After: The case stands as an application of those principles to its facts; it illustrates how the Court of Appeal will manage unrepresented appellants who seek extensive delay and who have filed defective appeal documentation. It confirms that:
This is an application-centered decision rather than a precedent-setting pronouncement. No cases were cited in the judgment and no statutory interpretation issues were argued or decided beyond procedural references (the Rules and the Legal Aid Commission Act are cited but not subject to interpretation in this judgment).
Passage: "The result is that the appellant has not identified for the purpose of the appeal the actual decision in respect of which the appeal is brought." [5] Plain-English: The appeal documents did not say which specific order or decision the appellant was appealing. That omission makes the appeal deficient and must be fixed.
Passage: "Once an appeal has been commenced it is incumbent upon the appellant to prosecute it with reasonable expedition and, subject to any orders of the court, in conformity with the rules of court, including the time limits set out in the rules." [12] Plain-English: If you start an appeal you must move it along promptly and follow the court rules on time limits unless the court orders otherwise.
Passage: "I am prepared to allow the appellant a greater extension of time than would normally be the case. I will order that the time within which the appellant's case is to be filed and served be extended to 24 July 2009." [14] Plain-English: The Judge decided to give the appellant extra time beyond what might usually be allowed, but it is a specific deadline: 24 July 2009.
Passage: "It is not for this court to make any recommendation as to whether or not the Legal Aid Commission should grant such an application." [16] Plain-English: The Court will not ask the Legal Aid Commission to give the appellant legal aid; the Commission decides those applications itself.
Passage: "I would add that the appellant should be aware that if the appellant's case is not filed by 24 July 2009 it is likely she will be required to show cause why the appeal should not be struck out pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA)." [15] Plain-English: If the appellant misses the new deadline, she will probably have to explain why the appeal should stay alive; otherwise the appeal could be struck out under the rules.
This judgment is relevant where:
In such circumstances the Court is likely to balance the appellant's personal circumstances against the need for procedural finality, grant a finite extension if appropriate, require correction of defective pleadings within set timeframes, and warn of striking out if non-compliance continues (Newnes JA [5], [12]–[15], [16]).
The judgment does not cite earlier authorities and records "Nil" in cases referred (see case metadata). The present judgment itself is an interlocutory exercise of discretion and, as recorded here, applies settled procedural principles rather than introducing novel law. The text of the judgment contains no references to later treatment. Absent external research beyond this judgment, one cannot assert how later courts have treated it. The judgment is, however, an instructive example of the Court exercising restraint by granting a specific, limited extension rather than accepting an indefinite adjournment.
Practitioners should treat this decision as persuasive demonstrative authority for the proposition that:
To determine how later courts have cited or applied TET v SP would require citation research beyond the text of this judgment.
Threshold for prejudice: The judgment applied the general balancing exercise but does not articulate a detailed framework for quantifying or weighing "intangible prejudice" to a respondent against an appellant's personal circumstances. What degree of delay and what specific impacts on a respondent will outweigh the appellant's personal circumstances remains fact-dependent and not exhaustively defined here (Newnes JA [13]).
What constitutes satisfactory explanation: Newnes JA accepted the appellant's circumstances were a factor, but the judgment does not specify what evidence or particular content in an affidavit would be sufficient to secure longer or multiple extensions. The appropriate evidentiary threshold for successive or lengthy extensions when an appellant is self-represented remains open.
Interaction with legal aid processes: The Court refused to recommend legal aid, but did not address whether and when the lack of legal representation, especially where legal aid is refused by the Commission, might justify further accommodation by the courts. The judgment leaves unresolved how much procedural flexibility a court should afford appellants who have unsuccessfully sought legal aid.
Role of defective appeal notices: The Court directed re-amendment of the appeal notice but did not set out a remediation timetable for different classes of defects or consider sanctions other than future striking out for continued non-compliance. The threshold between allowing correction and striking out remains to be developed by future decisions.
Administrative convenience vs substantive justice: The judgment stresses expedition and finality but does not explore in depth how procedural strictness should be tempered where substantive injustice might result from denying extensions. For example, where the appellant's affidavit alleges serious misconduct in lower court proceedings (as here, Newnes JA [9]), further guidance on when investigation outcomes are material to the appeal would assist practitioners.
Conclusion TET v SP [2009] WASCA 101 is a concise example of the Court of Appeal managing an untidy, delayed, self-represented appeal: it demands correction of defective pleadings, permits a specific limited extension having weighed circumstances and prejudice, refuses indefinite adjournment, and leaves legal aid decisions to the Commission. It is primarily a practical, fact-driven interlocutory ruling rather than a source of new law, but it provides useful guidance to practitioners on the Court's approach to delay and defective appeal papers.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : TET -v- SP [2009] WASCA 101
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Practice and procedure - Appeal - Application for extension of time to file appellant's case - Turns on own facts
1 (This judgment was delivered extemporaneously on 12 June 2009 and has been edited from the transcript.)
2 There are two matters before me today. The appellant, who is acting in person, has applied for an extension of time to file and serve the appellant's case. The appeal has also been listed, pursuant to a Registrar's notice to attend dated 30 April 2009, for directions. There is no appearance today by or on behalf of the appellant.
3 The appeal notice arises out of proceedings in the Family Court. The appeal notice was filed and served on 23 January 2009. An amended appeal notice was filed on 25 February 2009 and served on that day.
4 The original appeal notice was plainly defective. While it identified the judge who made the decision and the date of the decision, it did not state details of the decision itself, but instead set out a number of allegations about the conduct of some of those involved in the Family Court proceedings. That deficiency was not overcome by the amended appeal notice, which in all material respects is in the same form.
5 The result is that the appellant has not identified for the purpose of the appeal the actual decision in respect of which the appeal is brought.
6 I intend, pursuant to the Registrar's notice to attend, to direct that, on or before 29 June 2009, the appellant file and serve a re-amended appeal notice setting out details of the decision in respect of which the appeal is brought. The appeal notice must specify the particular orders in respect of which the appeal is brought.
8 On 9 April 2009, the appellant made an application for interim orders, in effect:
9 In support of the application the appellant filed an affidavit sworn on 9 April 2009. The affidavit contains serious allegations of misconduct on the part of some of those involved in the Family Court proceedings. I do not propose at this stage to say any more than that about its contents. I infer, however, that in order to pursue the appeal the appellant is awaiting the outcome of complaints she has made to various agencies in relation to the matters set out in her affidavit.
10 The appellant's application came on before me on 15 May 2009. Counsel for the respondent appeared but there was no appearance by or on behalf of the appellant. However, later on 15 May 2009 the court received an email from the appellant in which the appellant said that she was in England for personal reasons. A copy of the email has been provided to counsel for the respondent and it is unnecessary for present purposes to describe the balance of the contents of the email. It is, however, material that the appellant did not say in the email when she would be returning to Australia.
11 The application was adjourned to today and the appellant was advised by the court registry by email that it was listed for hearing today. The appellant was also informed that if she was unable to attend the hearing, any written submissions in support of her application should be filed and served by 9 June 2009. The appellant is not present or represented today but I understand the appellant in fact seeks to have the appeal adjourned until investigations into the matter by various agencies have been completed.
12 I do not, however, consider that it is appropriate simply to adjourn the appeal for what, even on the application as it stands, would in effect be an indefinite period of time. Nothing that has been put before me would justify that. Once an appeal has been commenced it is incumbent upon the appellant to prosecute it with reasonable expedition and, subject to any orders of the court, in conformity with the rules of court, including the time limits set out in the rules. The filing of the appellant's case is well out of time. The appeal is becalmed until that step has been taken. I am conscious that the appellant is acting in person. I am also conscious of the statements the appellant has made about her personal circumstances. Nevertheless, the appeal cannot remain in limbo indefinitely. I would also add that it is not apparent why the results of the investigations to which the appellant has referred are necessary to enable her to prepare the appellant's case. I would not, therefore, accede to the appellant's application.
13 At present it does not appear there would be any specific prejudice to the respondent if an extension of time were granted. There is, however, the obvious intangible prejudice that arises simply from having the appeal hanging over her.
14 Having regard to all of the circumstances, including what the appellant has said about her personal circumstances and the fact that she is acting in person, I am prepared to allow the appellant a greater extension of time than would normally be the case. I will order that the time within which the appellant's case is to be filed and served be extended to 24 July 2009. That is a period of six weeks from now. I will list the appeal for directions at 10.30 am on 7 August 2009.
15 I would add that the appellant should be aware that if the appellant's case is not filed by 24 July 2009 it is likely she will be required to show cause why the appeal should not be struck out pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
16 In relation to the second part of the appellant's application, it is up to the appellant to make such application as she may see fit to the Legal Aid Commission for the provision of legal aid. Any such application will no doubt be assessed and determined as required under the Legal Aid Commission Act 1976 (WA). It is not for this court to make any recommendation as to whether or not the Legal Aid Commission should grant such an application.
Order that the appellant file and serve a re-amended appeal notice specifying the particular orders appealed against by 29 June 2009; extension of time granted so that the appellant's case is to be filed and served by 24 July 2009; appeal listed for directions at 10.30 am on 7 August 2009; no recommendation to the Legal Aid Commission to be made by the Court; warning that failure to file may result in striking out under r 43(2)(g)(ii) (Newnes JA [6], [14]–[16]).