Hawke v. The State of Western Australia - (12 Dec 2019)

Power of Court to extend time for compliance with a springing order has to be exercised cautiously

Criminal

In present case, the Appellant was convicted on 27th November, 2017, after a trial before Corboy J and a jury for the murder of Mark Colin Koller (the deceased) on 14th April, 2014. Application is filed for extension of time to comply with springing order. Question involved in present case is whether Appellant's application to extend time is liable to be allowed.

Present Court has the power to extend time for compliance with a springing order, even though the time for compliance has passed. The power to extend time, when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. A failure to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity offered to the party to put its case in order.

The starting point for any application to extend time is that the defaulting party must establish why it should be permitted to continue with the litigation despite its failure to comply with a springing order. Although each case must be determined on its own facts and there are no hard and fast rules, a court considering an appellant's application would 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. (4) The prejudice to the other party if the time were extended.

It is also generally a relevant consideration whether or not the defaulting party has a reasonably arguable case on its merits. This court will pay due regard to the difficulties that self-represented Appellants in custody often face and the serious consequences that may potentially flow to the appellant if the court refuses to grant the application. This Court must also recognise that there is a strong public interest in the timely disposition of criminal appeals and that, in many cases, there is a human cost to victims and/or their families as a result of undue delay.

The Appellant's delay in filing an Appellant's case has been inordinate. The Appellant's case was initially due on 10 September 2018. The Appellant has been provided with legal advice and when his lawyers withdrew, he was given every opportunity to obtain further legal representation. Despite the very lengthy period of time that the appellant was given to file an appellant's case, and even in the face of a springing order, he failed to do so. The appellant is self-represented and a serving prisoner, no adequate explanation has been given for the Appellant's failure to file his appellant's case.

Further, there would be no point in granting an extension of time without present court being satisfied that the Appellant has a reasonably arguable case. Based on the materials provided and in the absence of a draft Appellant's case, there is no basis for this court to conclude that, the Appellant has a reasonably arguable case. It would have been futile to grant the Appellant's application to extend time. Application is dismissed.

Tags : SPRINGING ORDER TIME EXTENSION