Jackamarra (an Infant) v Krakouer [1998] HCA 27

High Court of Australia Brennan CJ McHugh, Gummow, Kirby and Hayne JJ Jackamarra (an Infant) v Krakouer (P28/1997) [1998] HCA 27

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of Western Australia and in lieu thereof order that:

(a) the period for entering the appeal for hearing in the Full Court be extended to a date six weeks from the making of this order;

(b) the second respondent's motion to strike out the appeal stand over generally;

(c) the second respondent have liberty to restore the strike out application in the event of the appellant's failing to enter the appeal within the period specified in par (a);

(d) the appellant pay the costs of the second respondent in the Full Court.

3. The second respondent pay the appellant's costs of the appeal to this Court.

Cur adv vult

The following written judgments were delivered:—

25 April 1998 Brennan CJ and McHugh J.

1. The question in this appeal is whether the Full Court of the Supreme Court of Western Australia erred in refusing to extend the time for entering an appeal and, as a consequence of that refusal, in dismissing the appeal for want of prosecution. The decisive reason for the Full Court's decision was that the appeal lacked "any real prospect of success". On the way that the case was conducted, however, we think that the Full Court erred in relying on that ground.

2. The history of the case is set out in the judgments of Gummow and Hayne JJ and Kirby J. There is no need for us to repeat it. The transcript indicates that counsel for the appellant understood that he could show that the appellant had a case on the merits by referring to the reasons of Commissioner Dawes and by outlining the type of arguments that he intended to put before the Full Court on the hearing of the appeal. It does not seem to have occurred to him that the Full Court might reject the application for an extension of time by concluding that the appeal would fail because he had failed to refer to the passages in the evidence that supported his arguments. That is hardly surprising. The evidence was not before the Full Court. Counsel for the appellant was plainly under the impression that the success of his application for an extension of time did not depend upon proof of an evidentiary foundation for his arguments.