Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : LAMERS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 3

Appeal - Repeated failures by appellant to comply with orders of registrar - Duty of appellant's solicitor - Springing order made

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

2 BUSS JA: By a notice to attend dated 3 November 2009, the Court of Appeal registrar has listed this appeal before the court today for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005. By that provision, the court has jurisdiction to dismiss an appeal if the appellant has not obeyed the Rules or any order made under them.

3 The appeal was commenced on 6 February 2009 and the appellant's case was required to be filed by 13 March 2009. It was not filed by the due date.

4 On 21 May 2009, the Court of Appeal registrar ordered that the time for the appellant to file and serve the appellant's case be extended to 4 June 2009. It was not filed by the extended date.

5 By a notice to attend dated 21 May 2009, the Court of Appeal registrar referred the appeal to two judges of the court (Buss & Newnes JJA). On 12 June 2009, the court made a springing order. It ordered, relevantly, that the appeal be dismissed unless the appellant's case was filed and served by 4.00 pm on 18 June 2009. The appellant's case was filed on the last day permitted under the order, that is, on 18 June 2009.

6 The respondent filed the respondent's answer within time.

7 On 28 July 2009, the indexes for the appeal books were approved and the appellant was ordered to file the books by 21 August 2009. On that basis, the appeal was included in the November and December list of cases for hearing. A hearing date on 9 December 2009 was allocated.

8 The appellant did not file the appeal books by 21 August 2009 and the Court of Appeal registry did not receive any correspondence from the appellant's solicitors in relation to the default. As a result, the Court of Appeal registrar issued a notice requiring the parties to attend a directions hearing before her on 23 September 2009. At that hearing, the registrar proposed to vacate the listing in December 2009, but she agreed, at the respondent's request, to maintain the hearing date because the issues to be determined in the appeal are of importance. The respondent consented to the time for filing the appeal books being extended to 9 October 2009, and the registrar made an order to that effect.

9 The appellant did not file the appeal books by 9 October 2009. The Court of Appeal registrar then issued another notice requiring the parties to attend a directions hearing before her on 23 October 2009. On 22 October 2009, the appellant's solicitor sought an adjournment of the directions hearing scheduled for the next day on the basis that he had other commitments. He wrote to the registrar, relevantly, as follows:

I respectfully ask that if the Registrar is prepared to adjourn the Directions Hearing for seven days, the Appeal books will be filed and the necessity for a hearing avoided.

On the basis of this promise, the registrar vacated the directions hearing date.

10 The appeal books were not filed in accordance with the promise of the appellant's solicitor. They have still not been filed.

11 The appellant's solicitor's explanation for his latest failure to comply with time lines is that he has not obtained a copy of the transcript of the hearing before the primary judge and has been informed by the transcript office that the tapes of the hearing have to be located. It appears, however, that the hearing before the primary judge was transcribed some time ago. The respondent has a copy and has offered to make it available to the appellant. The appellant's solicitor has now promised to file the appeal books by 13 November 2009.

12 At all material times, the appellant has been represented by Mr Chris Stokes of Chris Stokes & Associates. It appears that Mr Stokes is always apologetic for his repeated failures to comply with orders of the court. However, apologies are a poor and unacceptable substitute for performance. If a solicitor becomes aware that he or she will be unable, for any reason, to comply with an order of the court, his or her duty is to inform the court and the other party or parties immediately of this inability, and to apply for new or varied orders by consent or otherwise. It is unprofessional to ignore or otherwise fail to comply with orders of the court and leave it to the court or the other party or parties to take remedial or enforcement action.

13 By letter dated 10 November 2009, the respondent's solicitors informed the Court of Appeal registrar of the respondent's preference that the appeal not be dismissed and that the important issues raised in the appeal be determined. If the respondent had sought the dismissal of the appeal, I would have dismissed it. I have decided, however, with reluctance, to give the appellant a final indulgence.

14 I would order that the appeal be dismissed and the appellant pay the respondent's costs of the appeal to be taxed, unless the appellant files and serves the appeal books by 4.00 pm on 13 November 2009.

15 Also, I would refer to the coram hearing the appeal the question of whether the appellant's solicitor should be ordered personally to bear the costs of preparing, filing and serving the appeal books.