A -v- C [2015] WASCA 122 (12 June 2015)

Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 32

1 REASONS OF THE COURT: This matter was listed for hearing on 2 June 2015 to consider whether any of the grounds of appeal had any reasonable prospects of success. We struck out the appellant's case and made a springing order to the effect that unless an amended appellant's case, in compliance with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) were filed and served on or before 30 June 2015, the appeal should be struck out. We indicated that we would publish reasons. These are our reasons.

The primary decision the subject of the appeal

2 The appeal concerns certain orders made by Magistrate Moroni in relation to the property interests of the parties arising from the cessation of their de facto relationship. In essence, the magistrate found that the respondent to the appeal (the applicant in the proceedings below) should receive a payment equivalent to 17.5% of the value of a home unit registered in the appellant's name in a Perth suburb. The magistrate, in effect, made orders that the appellant pay the respondent:

(a) the sum of $560 representing one half of the fees paid to the single expert witness in the case; and

(b) the sum of $89,250 as and by way of an order in lieu of an order altering interests in the property, with the monies to be secured by a charge over the home unit.

3 The magistrate found that the home unit was worth $680,000.

4 The appeal itself was commenced out of time, and has proceeded as follows:

(a) the appeal notice was not filed until 12 March 2014, when the last day under the Rules on which to commence the appeal was 6 March 2014;

(b) on 17 April 2014, the appellant's case was due to be filed, but it was not;

(c) the time for filing the appellant's case was extended to 23 May 2014, but there was no compliance with that extension order;

(d) there was a further extension of time for the appellant to file an appellant's case to 19 June 2014, but there was non-compliance with that extension order;

(e) on 20 June 2014, a springing order was made requiring the appellant to file his case by 18 July 2014;

(f) the appellant's case was not filed by 18 July 2014;

(g) on 13 August 2014, the appellant was granted a further extension of time and was ordered to file an appellant's case by 23 September 2014;

(h) on 23 September 2014, the appellant filed an appellant's case and on 1 October 2014 the registrar issued a notice to attend a hearing to consider relevantly whether the appeal should be dismissed for failing to file an appellant's case which complied with the requirements of pt 5 r 32 of the Rules;

(i) on 8 October 2014, Newnes JA ordered that the appellant have leave to file an amended appellant's case by 5 November 2014;

(j) on 5 November 2014, the appellant provided a document to the court purporting to be an appellant's case, but the document was not accepted for filing;

(k) on 7 November 2014, the registrar extended the time to file an amended appellant's case to 24 November 2014;

(l) an amended appellant's case was not filed by 24 November 2014;

(m) on 24 November 2014, the appellant effectively applied for an order that the court accept the document provided on 5 November 2014 as an amended appellant's case;

(n) on 21 January 2015, Murphy JA dismissed the appellant's application (which was not, in any event, pressed at the hearing) and ordered that any amended appellant's case be filed and served by 4.00 pm 30 January 2015.

5 A further appellant's case was filed on 30 January 2015.

6 Since then the parties have filed written submissions on the question of whether any of the grounds of appeal have reasonable prospects of success. The court has considered all written materials and oral arguments in connection with that matter.

1. The magistrate has [sic] error in procedural fairness and obligation set out by the full court to a self representated [sic] person, not to adjourn the trial on the basis of disclosure, not receiving documentation on time from centre link [sic], documents that were ordered by the magistrate as 'irrevocable authority' between the parties.
2. The magistrate violating section 4(g) of the disability discrimination act 1992, by improper threat induced me to conduct a trial disregarding my emotional and mental state, leaving me without an alternative, and later using the words 'here we go again' not wanting to know or hear about my health even though I was asked by the applicants [sic] lawyer. (Transcript).
3. Magistrate error in believing the applicant [sic] false testimony about separation communication with centre link [sic] in 2008 which could have been proved had I received the documents from centre link [sic], as he pointed out in his decision that I did not prove that separation occurred in 2008.
4. Under the evidence rule 'Dunn and Browne rule', the denial of separation in 2008 by the applicant would have been avoided had the documents being [sic] shown to her.
5. The magistrate did not accept relevant documents from 2008 to the final separation of January 2009 documents to be submitted in to evidence which would have greatly influence [sic] his decision.
6. As a self represented [sic] I couldn't ask myself question [sic] in order to submit evidence, the magistrate did not take that into consideration.
7. The Magistrate did not make a reference in his decision about the documents that were submitted in to evidence, one in 2008 showing the applicant looking for a place to live among other things.
8. Failure to interpret 'cohabitation on genuine basis', 'intention of the applicant'[.] Failure to consider the contribution made to advance the education and career of the applicant[.] Failure to account for age and health conditions[.]
9. Magistrate error in not dealing with an application made on 8 of January 2014 in accordance with the family law act section 75(2)(o) as to new partners [sic] cohabitation status.
10. Prejudging the outcome despite the court deprivation of evidence, acting with divided loyalties.

8 In support of the grounds of appeal, the appellant's written submissions were as follows:

1. Force an unrepresented unprepared unarmed unaided uninformed exposed disfavored [sic] disabled person to conduct a trial, overwhelm to the point of delirium.
2. Apart from a mention in an application above my poor health from first lawyer appointed by legal aid brain [sic] Taylor. None of my other lawyers presented any of my health documents that were in their possession they choose not to include them.
3. Cohabiting with another party. Or any other reason as mentioned in 75(2)(o).
4. Paragraph 274 beats a smack to suggest 'it is difficult to Know if the respondent was serious about his de facto spousal maintenance claim'.
5. Any fair minded person reading the magistrate decision would conclude prejudice by the trial judge. Gleeson CJ, Hayne ... McHugh, Gummow [JJ] said 'fundamental principle that justice must be both be done and seen to be done ... It is based upon the need for public confidence ... Of Justice if fair minded people reasonably apprehend or suspect that the tribunal has prejudged the case they cannot confidence in the decision of the hypothetical reasonable observer of the Judge conduct is postulated in order to emphasise that the test is objective ... Need for public confidence in the judiciary ... Two things needs [sic] to be remembered the Observer is taken to be reasonable and the person being observed is a professional judge's training tradition and oath or affirmation require to discard the relevant to any material and the prejudicial ...'.
6. Parallel drawn between requests ignored by the magistrate and the magistrate terrorising me into submission. Too many factual mistakes in the magistrate [sic] decision to be a coincidence.
7. Centre link document [sic] that were ordered by the magistrate did not arriving [sic] on time for the trial to prove that the magistrate's so called 'near perfect witness' was evidently a liar.
8. The magistrate uses my limitation against me. And should have excused himself, as mentioned in Simpson ex parte 1984 the judge clearly identified the weaknesses the wife has against her lawyer husband and quickly tries to balance the power between them, the judge was accused of being biased rather than being fair.
9. 'The judge should clarify that particular orders sought by a litigant in person. The judge should ensure as far as possible that procedural fairness is afforded to all parties whether representative [sic] or appearing in person in order to ensure a fair trial.['] 'The judge should attempt to clarify the substance of the submission of the litigant in person.' The magistrate fails to adhere to the guidelines set by the full court.
10. Evidence for the hearing was tempered [sic] with.
11. By producing the documents that I was deprived of and calling witnesses will vindicate my claim.
12. My lawyers have undermined my case to satisfy a third party, and no consideration by the lawyers or the trial magistrate for the right child support payments, financial resources, age and state of health, standard of living after separation, cohabitation with other parties, commitment and responsibility to children.
13. Failure in consideration of liability and hardship under section 79(2) & 90SM(3).
14. My Lawyers [sic] loyalty to other causes, tempering [sic] with affidavit information, obligation to disclose facts, confidential communication breached. Duty to disclose until the end of the case. '... Constitute a miscarriage of justice...'
15. brain [sic] Taylor ceased to act for my mysteriously, according to rule 9.01(2) FMC which state [sic] 'with the court permission' that the lawyer needs leave of the court not less than seven days before filing the notice; would have still be [sic] my lawyer in time for the conciliation conference.
16. The property valuer was being way out of reality by design.
17. As one assume [sic] justice when entering the court of law it is also assumed that the magistrate/judge presiding would have specialised knowledge, as the transcript will show the magistrate mention and anticipate that the case will end at the Court of Appeal, yet his 'rational' decision was to deliver a defaming decision riddled with factual mistakes.
18. The magistrate and the applicants [sic] lawyer were in communication with each other excluding myself [sic].
19. High Court in JRL ex parte CJL 1986 'a judge should not in the absence of the parties ... Allow any person to communicate to him or her in any view or opinion concerning the case ...'
20. In granting a [sic] legal aid assistance the legal aid commission have created a conflict of interest in which their actions in favour of one rather than the other is very obvious. Section 121(9)c a permit [sic] the communication between legal aid and appointed lawyers but does not permit them to dictate an outcome, it is said that 'legal aid commission is in [an] analogous position to that of the Crown ... The legal aid commission is not restricted to recovering only the actual costs to the commission of the represented by an employed lawyer'. That's motivating legal aid to run as a private business for profit with the benefit of no oversight.

9 None of the grounds of appeal has any reasonable prospect of success. Ground 1 is incomprehensible and discloses no arguable error. Ground 2 is plainly vexatious and discloses no arguable error. Ground 3 fails to disclose any arguable error and fails to disclose the relevance, if any, of a 'separation communication'. Ground 4 suffers from the same defects as ground 3. Ground 5 is in impossibly wide and vague terms and discloses no comprehensible error. Ground 6 is incomprehensible. Ground 7 suffers from the same defects as grounds 3 and 4. Ground 8 is incomprehensible. Ground 9 is also incomprehensible and its relevance is not apparent in either the grounds of appeal or the submissions. Ground 10 is in impossibly vague and general terms and discloses no sensibly arguable error.

10 The appellant has had a number of occasions on which to prepare his case on appeal. Making full allowance for his position as a self-represented person, the grounds of appeal filed 30 January 2015 still provided no proper basis upon which the court could sensibly conduct the hearing of the appeal, and, having regard to the legitimate interests of the respondent in being appropriately apprised of the case against her, justice would not be served by allowing the appellant's case to stand.

11 Accordingly, the court concluded that it was appropriate to strike out the appellant's case dated 30 January 2015, on the basis that none of the grounds of appeal had any reasonable prospect of success.

12 Despite the very lengthy interlocutory delays to date, which are no fault of the respondent who has had an unsatisfied judgment for well over a year, we also gave the appellant one final opportunity to file an appellant's case on the basis that he said, in effect, that he was expecting to retain a barrister. Accordingly, the court ordered that:

1. The appellant's case filed 30 January 2015 be struck out.
2. The appellant have leave to file and serve an amended appellant's case, in compliance with the Supreme Court (Court of Appeal) Rules, on or before 30 June 2015.
3. Unless the appellant do file and serve on or before 30 June 2015 an amended appellant's case in compliance with the Supreme Court (Court of Appeal) Rules:

(b) the appellant do pay the costs of the appeal including any reserved costs, to be taxed.