MTI -v- SUL [2007] WASCA 57 (23 February 2007)

Court of Appeal (WA)|2007-02-23|Before: Buss JA

1 BUSS JA: The appellant is the father and the respondent is the mother of the child the subject of this appeal.

2 On 30 May 2006, a Magistrate made parenting orders in relation to the child. On 8 September 2006, the appellant filed in the Family Court of Western Australia a Form 20 Notice of Appeal, appealing against some of those orders. On 9 October 2006, the appeal was heard by the Honourable the Chief Judge of the Family Court of Western Australia, and the following orders were made:

3 On 27 October 2006, the appellant filed an appeal notice in this Court, appealing against the costs order made against him in the Family Court on 9 October 2006.

4 The appellant did not file a Form 3 Service Certificate (pursuant to r 29(5) of the Supreme Court (Court of Appeal) Rules 2005 (WA)), or an appellant's case (pursuant to r 32(2)(b)), within the times prescribed by the Rules, and the appeal was therefore listed for directions before the Court of Appeal Registrar on 11 December 2006. By letter dated 4 December 2006, the appellant was notified of this listing. The appellant did not attend the directions hearing before the Registrar. Nevertheless, the Registrar made the following orders, of which the appellant was notified by letter dated 11 December 2006:

(1) The time for the appellant to file and serve the appellant's case be extended to 21 December 2006.

(2) In the event that the appellant does not obey that order, the appeal be referred to a single Judge of Appeal to consider whether the appeal should be dismissed under r 43(2)(g)(ii).

6 I was informed by the appellant today that he did not receive the letter dated 11 December 2006 until on or about 22 December 2006. He also told me that he did not receive the letter dated 4 December 2006. The appellant said that he had changed his address and he had not filed or served a new address for service because he did not want the respondent to know his new address. According to the appellant, that explained the delay in his receiving the letter dated 11 December 2006 and his non-receipt of the letter dated 4 December 2006. It is, however, the appellant's responsibility to ensure that an appropriate address for service is filed to enable correspondence from the Court (and the respondent) to be received by him promptly.

7 I have decided not to dismiss the appeal today, but I consider it is appropriate, in the circumstances, that a springing order be made. Accordingly, I will order that the appeal be dismissed and the appellant pay the respondent's costs of the appeal to be taxed, unless the appellant's case is filed and served by 4 pm on 9 March 2007.

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