S -v- D [2014] WASCA 224 (1 December 2014)

Evidence Act 1906 (WA), s 106R

Family Court Act 1997 (WA), s 205ZD(3), s 205ZG

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

H v P [2011] WASCA 78

In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355

K v R [2010] WASCA 237

KD v GB [2014] WASCA 165

Maguire v Kearns [2010] WASCA 13

T v L [2006] WASCA 46

Williams v Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255

3 MURPHY JA: This is an appeal from the decision of family law Magistrate Duncanson (as she then was) delivered 4 December 2012 concerning a property settlement in relation to a de facto relationship.

4 The parties had been in a de facto relationship for nearly four years, from October 2005 to July 2009. At the start of the relationship, the appellant was aged (approximately) 35 years and the respondent was aged (approximately) 29 years.

5 The magistrate concluded that the respondent should receive 60% of the assets and the appellant should receive 40% of the assets.

6 (All references to paragraph numbers in these reasons are references to the paragraph numbers in the magistrate's reasons D and S [2012] FCWAM 79.)

7 At all material times up to 1994, the respondent's parents owned a house in Langford. In 1994, the respondent's parents separated on the basis that the respondent's mother would have the Langford property. When the parents separated, the respondent started living with her mother at the Langford property.

8 In 1999, the respondent's mother wanted to move from Langford [41]. As a result, a property in Canning Vale was purchased in late 1999/2000 [13], [41]. The title was registered in the names of the respondent, the respondent's mother and the respondent's sister [13]. The price of the block was $86,000 [41]. The respondent contributed $28,000, the respondent's sister contributed $25,000 and the mother contributed $60,000 to the purchase [41]. A home was built on the Canning Vale property for a contract price of $115,000 [42]. A loan in this connection was also taken out in the names of the respondent, the respondent's mother and the respondent's sister for $80,000 [42].

9 The respondent, the mother and the sister lived at the Canning Vale property [43]. Mortgage repayments were made by the respondent's mother, and the respondent and her sister each paid the mother board of $100 per week [43]. (Other material findings of fact concerning the

acquisition of the Canning Vale property are set out in relation to grounds 5 - 7 and 9, in [56] - [64] below.)

10 In 2001, the appellant purchased a property (the appellant's property).

11 In May 2002, the appellant and the respondent started dating [15].

12 In 2002, the respondent's mother and the appellant agreed that the appellant would live in the Langford property rent free, and renovate it. This would enable the appellant to rent out the appellant's property and use the rent to repay his own mortgage [90]. The appellant moved into the Langford property in late 2002 [90]. For most of 2003, the appellant occupied the Langford property rent free. With the respondent's assistance he carried out renovations to it [16]. He carried out a 'considerable amount of work' to this property [54].

13 In August 2004, the respondent and her sister purchased the Langford property for $80,000 from their mother. The respondent deposed that the market value of the property would have been between $120,000 - $130,000 [44]. The respondent contributed $40,000 to the price and the respondent's sister contributed $40,000 to the price [44]. In connection with this purchase, the respondent and her sister borrowed $100,000, of which the respondent's share of the loan was $60,000. The sum of $60,000 covered the respondent's contribution to the purchase price of $40,000, and she used the other $20,000 towards purchasing a home with the appellant, referred to below [44].

14 At around this time, the appellant's home and the Langford properties were rented out and the rent for each covered the respective mortgage repayments [86].

15 In 2004, the appellant and the respondent together purchased a property and built a home there (the 'de facto home'). The block cost $131,000 and the contract price for building the home on it was $131,500. In addition, the appellant undertook some of the work himself, thereby saving on some building costs [74].

16 Also around 2004, the appellant extended his mortgage on the appellant's property by borrowing a further $40,000. He used $28,000 of this towards the deposit on the purchase of the de facto property, and the other $12,000 was used to pay for work carried out on the appellant's property and to purchase items for the de facto home [76].

17 In September 2004, the respondent's mother paid out the loan on the Canning Vale property using the proceeds of sale from the Langford property [44]. The respondent had a substantial amount of cash savings, which she used to make cash deposits into the mortgage on the de facto property in 2004, and in purchasing items for the de facto property [80], [81].

18 The appellant moved into the de facto home in July 2005. The respondent moved into the de facto home in October 2005 [19]. This was when the de facto relationship commenced.

19 The respondent and her sister sold the Langford property in March 2006 for $235,000. After discharging the mortgage and the payment of costs and commissions, the net proceeds were $126,609 [87]. Of this net sum, the respondent received $20,000 less than her sister as she had received an additional $20,000 from the loan to pay a deposit on the de facto home [88]. The respondent and her sister were also advised to retain $20,000 each for capital gains tax. Of the remainder, the amount received by the respondent was $30,300 which she paid into the de facto home mortgage on 18 April 2006 [88].

20 In 2006, after the appellant sold the appellant's property, he also contributed funds to the de facto mortgage [21], in the sum of $111,000 [104].

21 In July 2009, the couple separated and the respondent left the de facto home. The appellant remained there [22].

22 In early 2010, the respondent's name was removed from the title of the Canning Vale property and her legal interest was transferred to her mother and her sister for no consideration [23], [46]. The reason given for this was because the respondent's mother and the respondent's sister purchased a property in Jindalee (the Jindalee property) and the Langford property was security for the loan over the Jindalee property [45].

23 In closing submissions in the proceedings at first instance, the respondent sought a division of the overall net assets of between 65% - 75% in favour of the respondent and 25% - 35% in favour of the appellant on the basis that the parties would retain the assets and liabilities in their respective names, and that the de facto home would be sold and the sale proceeds would be divided in such proportions to achieve this outcome [5]. On the respondent's case the asset pool would not include an interest in the Canning Vale property. The appellant sought an order that the respondent's interest in the de facto home be transferred to him, and that he discharge the mortgage and pay the respondent a sum equal to 50% of the net assets of the relationship. On the appellant's case, the respondent had a one third beneficial interest in the Canning Vale property [6].

24 On 4 December 2012, Magistrate Duncanson ordered that the appellant pay to the respondent the sum of $279,054; that the respondent transfer to the appellant all of her right, title and interest in the de facto home; and that the appellant discharge the mortgage over the de facto home.

25 The factors to be taken into account when making a property order are set out in s 205ZG of the Family Court Act 1997 (WA) (the Act). A common approach in dealing with the considerations under s 205ZG is the four-step approach (also known as the 'global approach') set out in In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355 [39], which was followed by the Court of Appeal in T v L [2006] WASCA 46 (see [24]) and referred to in Maguire v Kearns [2010] WASCA 13 at [19] - [20]. However, in exercising its discretion, the court is not required by s 205ZG to use either the global approach or an asset by asset approach to the exclusion of the other. Whilst in most cases the global approach is more convenient, the application of one approach rather than the other does not of itself amount to an error of law: KD v GB [2014] WASCA 165 [47]. The global approach, which was adopted by the magistrate in this case [26], is as follows:

1. The court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing.
2. The court should identify and assess the contributions of the parties within the meaning of s 205ZG(4)(a), s 205ZG(4)(b) and s 205ZG(4)(c) and determine the contribution-based entitlements of parties expressed as a percentage of the net value of the property of the parties.
3. The court should identify and assess the relevant matters referred to in s 205ZG(4)(d), s 205ZG(4)(e), s 205ZG(4)(f) and s 205ZG(4)(g) (which includes the matters referred to in s 205ZD(3)) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step 2.
4. The court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.

26 Section 205ZD(3) of the Act provides:

The matters to be taken into account are -

(a) the age and state of health of each of the de facto partners; and

(b) the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either de facto partner has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and

(d) commitments of each of the de facto partners that are necessary to enable the partner to support -

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under -

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(i) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(j) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(k) the need to protect a party who wishes to continue that party's role as a parent; and

(l) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation; and

(m) the terms of any order made or proposed to be made under section 205ZG in relation to the property of the parties; and

(n) any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement or former financial agreement that is binding on the parties.

27 The appellant, who is self-represented, relies on the following 11 grounds of appeal:

The Primary Court Erred in Fact and Law as follows;

(1) The primary court had error in Fact and Law when taking into consideration the applicant's future earning capacity. The Applicant's primary role as fulltime carer and homemaker for his biological baby daughter ... and that the Applicant's position of having a greater capacity, in earnings was in error of Fact and Law when considering Family Court Rule 205ZD adjustment.

(2) The Primary Court had error in law due to the fact that [the respondent's mother] was unable to be cross-examined at trial due to her emotional state. The primary court was obligated to adjourn the trial until the witness [the respondent's mother] had control of her emotions. Evidence Act 1906 (WA) s 106R. Because of this error to testify the Applicant was denied natural justice.

(3) An error of Fact was made by the primary court's findings. This error in its findings about the Respondent's financial contribution of $50,000 savings contributing to the financing of [the de facto home] was incorrect. There was no Fact or factual evidence to support such claims at trial. There for the primary courts findings were in Error due to the Respondent's unsatisfactory evidence to support such Fact or claim about this amount of money ever existing.

(4) The Primary court had error in fact when having regard to insufficient evidence in considering its findings and judgment. The Respondent in these proceedings claimed to have purchased a number of items for [the de facto home] totalling around $35,000 'no receipts' were provided for such purchases. This error by the primary court is unsatisfactory in the judgment.

(5) The primary Court had error in Fact based on evidence the Respondent had a financial interest in a property located at [the Canning Vale property]. The weight of evidence supports claims there was in fact a financial interest in the said property, the respondent made a financial contribution to [the Canning Vale property].

(6) The primary court's error in Fact when weigh up the evidence. Its findings were unreasonable and cannot be supported having regard to the weight of evidence. When considering the evidence of the subpoena bank statements ... the evidence clearly showed the Respondent had a joint mortgage.

(7) The primary court's error in Fact when weight of evidence present at court was not considered. The respondent at [her sister's] testimony given at trial collaborates financing of the [Canning Vale] property, with the Respondent in cash financing of the said property. This Fact was not taken into consideration by the Primary Court. This Fact of contributions would indicate that the respondent financed the mortgage which shows a vested interest in the said property.

(8) The primary court's error in Fact and the Primary Courts findings was unreasonable and cannot be supported having regard to the evidence. The Applicant had made significant direct and indirect contributions to the [Langford property] and improving the overall value some (E) $100,000. That should have been added to the overall financial pool as an indirect and direct contribution to the relationship's finances.

(9) The Primary Court failed to weigh up the evidence of Fact concerning. The Respondent transferring her vested interest in the [Canning Vale] Property so it would not be taken into consideration with the overall financial pool. The Respondent's sister still remains on the property title and is currently financing a property located in Jindalee at the value of (E)$455,000. With the [Canning Vale] property being used as security against the loan this property is being financed solely by [the respondent's sister] on a part-time job.

(10) The Primary court had error in fact based on factual statement evidence handed into court by [SB] and [CS] as to the [appellant's property] and the state it was in while extending his mortgage for the financing of the [de facto home]. The primary court should have considered this evidence when working out contributions.

(11) Most of the Factual Evidence submitted to court was never considered the fact this error by the Primary Court is unsatisfactory. The Applicant contributed 80% to the financing of [the de facto home] and helped with the children when he arrived home from 12hr shifts was never considered in the Primary court's findings. The fact the Applicant cared for the children after work was never considered or factored into contributions. The Fact the respondent failed at home duties was never considered as a lack of contributions as Home maker at the time.

28 In order to succeed in his appeal, the appellant must show that the orders made by Magistrate Duncanson are the result of some legal, factual or discretionary error: H v P [2011] WASCA 78 [42]: K v R [2010] WASCA 237 [15]).

29 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 - 128, Gleeson CJ, Gummow and Kirby JJ observed:

On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561 ... On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record ... These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share ...

...

[But] [i]f, making proper allowance for the advantages of the trial judge, [appellate courts] conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties ...

Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons ... However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court ... In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' ... or 'contrary to compelling inferences' in the case ... In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion [23], [27], [28], [29]. (footnotes omitted)

30 In H v P [43], reference was made to Williams v Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255 [60], where Heydon JA (Spigelman CJ & Sheller JA agreeing) said that an appeal court:

[I]s in the same position as that ascribed to the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ:

'[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) [1979] HCA 9; 142 CLR 531] (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318 - 319).)' (Emphasis added).

31 This ground concerns the magistrate's findings in relation to the appellant's future earning capacity.

32 The magistrate found, relevantly, the following facts:

(a) the respondent is a fulltime parent to the children of the relationship and she intends to devote herself to their care until the youngest commences primary school, when she hopes to obtain some part-time employment during school hours [122];

(b) the respondent has no formal training, but hopes to set up a small business or get some work in retail, although in the latter case she may have to retrain as she will, by then, have been out of the workforce for some time [122];

(c) the respondent supports the children and the appellant pays minimal child support [126];

(d) the children are in the respondent's primary care [126];

(e) the respondent is in a very supportive relationship, both emotionally and financially, with her family and this was to be taken into account in a 'broad, general way' [129];

(f) it is to be accepted that the appellant suffered an injury to his back, but he had produced no medical evidence with a prognosis for his future, and whilst he may not return to his pre-accident employment, it appears that he intends to study to become either a teacher or a lawyer [123];

(g) the appellant's present partner will return to some part-time employment later this year and their child will be cared for by the appellant whilst his partner returns to her employment [127];

(h) both parties had superannuation benefits, although those of the appellant were three times greater than those of the respondent, but, in any event, they were modest in terms of provision for the future [130]; and

(i) both parties hope to obtain some employment, but both indicated they may require retraining. The respondent in this regard was less readily able to do so by reason of her care of the children of the relationship [131].

Overall, I consider [that the appellant] is in a stronger economic position than [the respondent] primarily by reason of her need to care for the children of the relationship. In my discretion I consider a 10% adjustment in favour of [the respondent] is warranted in the circumstances.

34 The appellant submits that the magistrate failed to take into account the facts that the appellant is the fulltime carer and homemaker for his daughter from his new relationship; that he has a back injury; and that in combination, these two matters render him unable to return to work. In comparison, he submits that the respondent has owned 'two very lucrative businesses in the past' and that the children in the respondent's care (from her relationship with the appellant) are in school fulltime.

35 In support of his submissions the appellant referred to certain pages in the transcript, including evidence given by him at trial. He also referred to evidence given by the respondent to the effect that she had previously run a dance school business with her sister, the income from which did not cover the rent of the premises, and in respect of which the numbers of students declined after 2004 until it was eventually closed down in 2010 (GB 68 - 69). None of this material reveals any error of fact on the part of the magistrate in relation to the findings referred to above. Moreover, it is plain that the magistrate did take into account the appellant's injury to his back and his proposed care for his child.

37 This ground alleges that the magistrate erred by not allowing the respondent's mother to be cross-examined. The appellant submits that the magistrate was 'obligated to adjourn the trial or make orders until [the respondent's mother] had control over her emotions or to make orders for [the respondent's mother] to be able to give appropriate evidence at trial on another day' or that the magistrate should have organised arrangements whereby the respondent's mother had a person near her while giving evidence to provide her with support or that she have a communicator relaying her answers to the court. To that end, the appellant referred to s 106R of the Evidence Act 1906 (WA) which deals with 'special witnesses' for whom such arrangements can be made. The appellant contends that this error resulted in a denial of natural justice, as cross-examining the respondent's mother would have made a 'significant contribution' to the facts at trial.

38 The respondent submits that the appellant had the opportunity to cross-examine the respondent's mother, however declined to do so and that, in essence, the appellant's submissions in support of this ground are at 'entire odds with the events in the [primary] court as recorded in the transcript'.

Both parties and their witnesses were emotional during the proceedings. [The appellant] was unable to cross-examine [the respondent's mother]. She was a very nervous lady and obviously apprehensive about giving evidence. [The appellant] broke down when cross-examining her and was unable to continue. After a short break I invited him to do so but he said that he had no questions for [the respondent's mother]. Given the importance of her involvement particularly with respect to the [Canning Vale property] I informed [the appellant] of the possible consequences if he did not cross-examine her about her evidence regarding [the respondent's] interest in that property. He declined to do so [38].

40 The relevant transcript of the trial (GB 15 - 16) supports the magistrate's reasons at [38] and confirms the respondent's submissions.

41 At the hearing of the appeal the appellant made two further submissions. One was to the effect that the affidavit by the respondent's mother was served late and he was unable to address it properly. The second was that whilst he asked for, and obtained, a short adjournment before the respondent's mother completed her evidence by reason of the appellant's concern that she was too distressed to proceed, the adjournment was too short. As to the first submission, there is no evidence that the appellant objected to the mother's evidence on the ground of lateness. As to the second submission, the appellant did not communicate to the magistrate that he considered that the adjournment was too short at the time. Neither submission identifies any error by the magistrate.

43 This ground alleges that the magistrate erred in 'findings about the Respondent's financial contribution of $50,000'. The appellant contends that there is no evidence to support the fact that the respondent had $50,000 in cash in the frame of her bed and that this was 'completely fabricated'. The appellant also submits that the respondent spent large amounts of money shopping and dining out which would have impacted heavily on her savings, and that she bought a new car in 2001 which was financed by way of a loan. He suggested that if the respondent had savings, she would have bought the car outright.

44 The magistrate accepted the respondent's evidence that she was a 'saver' and said that she had a 'substantial amount' of cash by the time of the purchase of the de facto home, although she could not determine whether it was 'as much as $50,000' [77] - [78]. The magistrate also appears to have accepted that the respondent, from her cash savings, had made deposits into the joint bank account for the purpose of mortgage repayments in respect of the first year of the ownership of the de facto home in the sum of $26,855 [80]. The magistrate also found that the respondent applied her cash savings, together with her income, towards the purchase of a number of items for the de facto home in the sum of $35,600 [81].

45 Accordingly, it is not correct to say that the magistrate made a general finding to the effect that the respondent had contributed '$50,000 savings' to the financing of the de facto home. The amount of $35,600 was also found to be derived from her income. The specific findings made by the magistrate were based on her assessment of the evidence given by the respondent. The appellant's submissions regarding the respondent's spending habits and the fact that she purchased a car on loan do not establish any error. As to the latter matter, the appellant cross-examined the respondent and the following exchange occurred:

[The appellant]: I was just wondering, if you had all this money, why you would have taken a loan out? - [The respondent]: Because well we were building the house, there were things to buy for the house and that's what I had - in my mindset, I had saved all of this money for my future home so that I had some stability (GB 13).

46 The findings made by the magistrate were open on the evidence. This ground should be dismissed.

47 This ground relates to the magistrate's finding:

During 2004 and 2005 [the respondent] purchased a number of items for the property at a cost of $35,600. The sources of the funds were her cash savings but also her earnings [81].

48 In essence, the appellant submits that there is no evidence to support the respondent's contention that she contributed this money and that, in fact, she did not contribute this money. In particular, the appellant submitted that there were no receipts or other documents to prove that the respondent had made the purchases she claimed, and that the court should have inferred from a few invoices addressed to the appellant for sums between $46.87 and $3,885, which indicate 'cash' sales (GB 237 - 241), that the respondent's claim was fabricated.

49 The respondent submits that neither party had the receipts in relation to all the items that the respondent claimed to have purchased, and that the court simply preferred the evidence of the respondent.

50 The cross-examination of the respondent by the appellant included:

I would like to show you ... some receipts if I could please? - Thank you.

Did you say to the court that they're correct, those receipts for what we had purchased and where the unit was purchased? - Yes.

Whose name is on that receipt? ... Yours. You always put your name on them. You put your name on the spa bath as well. A lot of the time I actually gave you the money and you went off and bought it. So you didn't actually pay for it.

Do you have any proof of what you've just said? ... - No because it was cash.

...

Ok, and the name on that receipt is? - The name means nothing ... a lot of the time you stepped forward and spoke to the salesmen, and they put your name down. Didn't mean that you paid for them ... (GB 9 - 10)

51 It was open to the magistrate to accept the respondent's evidence and to make the findings that she did. No error is shown and ground 4 should be dismissed.

52 Grounds 5 - 7 and 9 relate to the respondent's alleged interest in the Canning Vale property. In ground 5 the appellant submits that the magistrate did not take into account the fact that the respondent contributed the sum of $28,000 and the fact that the respondent paid her mother $100 per week.

53 Ground 6 alleges that the respondent's bank statements 'clearly showed' that the respondent had a joint mortgage for the acquisition of the Canning Vale property. The submissions in support of ground 6 are to the effect that the circumstances of the purchase of the Canning Vale property are 'exactly the same' as the circumstances in which the de facto home was purchased and that accordingly, the respondent has an interest in the Canning Vale property.

54 Ground 7 alleges that the fact that the loan obtained to finance the Canning Vale property was in the names of the respondent, her mother and her sister, and the fact that the respondent and her sister paid to their mother board of $100 per week which they knew may have been used by the mother to pay her mortgage, indicated that the respondent financed the mortgage and had an interest in the property.

55 Ground 9 alleges that the magistrate erred by failing to infer that the respondent transferred her interest in the Canning Vale property so that it would not be added to the pool of assets for the purpose of the property settlement proceedings. The appellant contends in this regard that the magistrate 'had not taken the weight of evidence into consideration when dealing with the respondent having a financial resource in trust' with the respondent's sister and mother. The appellant also contends that as the respondent's sister used the property as security for a loan in acquiring the Jindalee property, the sister has a financial interest in the property and that similarly, the respondent also has an interest in the property.

56 The magistrate found that there was no evidence that the funds provided by the respondent were a loan to the mother [53]. Also, it was not established that there was any agreement between the respondent, the mother and the sister that the respondent would acquire an interest in the property [53].

(a) the mortgage repayments on the property were all made by the respondent's mother [43];

(b) whilst it is possible that the respondent's board contributed to the loan repayments, ultimately the loan was paid from the mother's money using the sale proceeds of the Langford property in September 2004 [44], [55]; and

(c) the respondent did not, in any event, contribute after she moved out of the Canning Vale property in 2005 [55].

58 The magistrate further found that generally, the respondent, the sister and the mother were in a close relationship and were supportive of each other and had assisted each other financially in the past [58], [59].

59 She also found that the respondent and her sister were placed on the title in order to assist their mother in obtaining a loan to build the home, as the mother was 57 years at the time and in receipt of a small income as a seamstress [53].

60 The evidence of the mother, the respondent and the respondent's sister, which the magistrate accepted, demonstrated that none of the parties intended that the respondent should acquire a one third interest in the Canning Vale property or an interest proportionate to her contribution [59];

61 With respect, specifically, to the intention of the respondent at the time of the acquisition of the Canning Vale property, the magistrate found that the intention was that the respondent would make a gift of the $28,000 to her mother [59].

62 The magistrate also found that it was 'plausible' that the respondent's name was removed from the title of the Canning Vale property because she did not want to be part of the loan over the Jindalee property and hoped to purchase her own home in the future [57].

63 The magistrate's findings were made in the context that she generally regarded the respondent as endeavouring to give truthful evidence [27].

64 In relation to ground 5, the magistrate did take into account the fact that the respondent paid $28,000 in relation to the purchase of the Canning Vale property [41], and noted that the respondent did pay board until she moved out in 2005 [43], [55].

65 It was open to the magistrate to find on the evidence that the sum of $28,000 was not provided by the respondent in her 'character' as 'purchaser' (cf Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 246), but rather as a gift to the mother. It was also open to the magistrate to find that whilst the respondent paid board, all of the mortgage repayments were made by the mother, and that the mortgage was eventually discharged in 2004 by the mother using the sale proceeds of the Langford property.

66 As to ground 6, the magistrate recognised that the respondent was a party to the loan in connection with the Canning Vale property. However, she found, in effect, that the purpose behind that was to enable the mother to acquire the property. She also found that the respondent did not make any mortgage repayments. It was open to the magistrate to conclude that the circumstances concerning the acquisition of the Canning Vale property were materially different from the financial arrangements with respect to the purchase of the de facto home.

67 Ground 7 does not add anything material to grounds 5 and 6. Ultimately, I am not persuaded that the magistrate's findings are contrary to other incontrovertible facts or uncontested testimony, or glaringly improbable.

68 In relation to ground 9, the inference for which the appellant contends is not one that could be drawn, or at least readily drawn, unless the primary findings of fact referred to earlier were successfully challenged. Nor can it be inferred that any interest the sister might have in the Canning Vale property should itself be determinative of the question of whether the respondent has, or had, an interest in that property. Whilst the sister's involvement in the transaction was relevant contextual evidence, the magistrate was not required to determine in the proceedings below whether the sister had, or has, an interest in that property. It is also to be noted that the magistrate was of the view that there 'is more to the circumstances of this family than emerged at trial' [39].

69 For these reasons, I am not persuaded that error has been established in relation to grounds 5, 6, 7 and 9.

70 The appellant contends that his renovations to the Langford property increased the value of it by $100,000, and that this should have been taken into account. The appellant submits that the respondent told him that she and her sister were the owners of the property and the appellant had undertaken work on the property for the respondent as opposed to the respondent's mother. Further, the appellant submits that the respondent had purchased the property for $80,000 and sold it for $235,000, which had not been taken into account by the magistrate.

71 The magistrate had made the findings of fact referred to in [12] - [14] above. In addition, and on the basis of those findings, the magistrate found, in effect, that the arrangement between the appellant and the respondent's mother was financially beneficial to both of them ([90] - [92]).

72 The magistrate referred to the evidence on which she relied and it was open to her to make those findings on the evidence. The reasons that the renovations were excluded from the pool of assets were essentially that the work had occurred some two years prior to the commencement of the de facto relationship and at a time when neither de facto party owned the property in question. Moreover, there was no evidence, in any event, that the renovations increased the value of the property by $100,000. Whilst the appellant submitted that certain photographic evidence indicated that work on the house was carried out in 2003, that is consistent with the magistrate's finding that the appellant stayed in the house rent free for most of 2003 [16].

74 The appellant alleges, in effect, that the magistrate erred by not taking into account the evidence of a friend of the appellant and the appellant's brother. The evidence comprised a short written statement from each person (GB 259 - 262).

75 The appellant submits that the magistrate 'presumed the [appellant] spent money from [the] extension of [the appellant's] mortgage on the [appellant's] property' and that this was an error and inconsistent with the evidence. The appellant submits that the he had spent the '$12,000 surplus' on the de facto home and this was 'completely overlooked'.

[The appellant] extended the mortgage on the [appellant's] property by $40,000 ... and he paid $28,000 towards the deposit. The balance of $12,000 was used to pay for work carried out on the [appellant's] property and to purchase items for the [de facto home] [76].

77 It is to be noted that the magistrate found that the $12,000 was not only applied (as to part) to the appellant's property, but was also applied (as to part) to the de facto home.

78 The evidence relied on by the appellant made no reference to the residual $12,000 from the appellant's extension of his mortgage. The brother's statement was to the effect that he had assisted in certain renovation work; that he and his family had provided money to the appellant from time to time; and that the de facto home was left in an untidy state when the respondent moved out. The evidence of the friend concerned matters prior to the commencement of the de facto relationship, and the friend's assistance in carrying out certain renovation work.

79 The evidence does not point to any error by the magistrate. Ground 10 should be dismissed.

80 The appellant alleges that the magistrate failed to take into account the following matters: that the appellant had contributed 80% of the finance for the de facto home; that the appellant would take care of the children after work; and that the respondent had 'failed at home duties'. The appellant provided a table in his submissions which listed contributions said to be made by both parties. The totals of the items in the list indicate that the appellant contributed approximately 80% of the aggregate amount.

81 The appellant's written submissions stated, in effect, that the figures in his table were supported by the affidavits and the evidence at trial, but did not identify any particular evidence upon which he relied. At the hearing of the appeal he was given an opportunity to file and serve a schedule identifying the relevant materials upon which he relied, and the respondent was given the opportunity to respond.

82 The appellant filed an affidavit on 17 September 2014 setting out the materials which he said supported the figures in his table. The respondent responded by way of a schedule filed on 26 September 2014.

83 The appellant's table in his submissions, and the references in the materials provided by the appellant, covered the following areas:

(a) contributions by the appellant in the sums of $28,000 and $111,000 respectively;

(b) contributions by the respondent in the sums of $18,500 and $30,300, including from the sale of the Langford property;

(c) the appellant's renovations to the Langford property alleged in the sum of $100,000;

(d) finishings allegedly supplied to the de facto property by the appellant in the sum of $25,000;

(e) items allegedly purchased by the appellant for the de facto property in the alleged, estimated, sum of $25,000; and

(f) mortgage payments allegedly made by the appellant in respect of the de facto property, estimated at $59,280.

84 As to the matters in (a) and (b) of the preceding paragraph, the appellant's contribution of $28,000 was found as a fact by the magistrate [76]. The magistrate also found that following the sale of the appellant's property [21], the appellant paid $111,000 into the mortgage for the de facto property [104]. The magistrate also found, in effect, that the respondent had contributed $18,500 to the purchase of the de facto home [89], and had made contributions to the mortgage from the sale of the Langford property in the sum of $30,300 [20], [88]. Accordingly, each of the matters alleged in (a) and (b) of the preceding paragraph were facts as found by the magistrate. It cannot be inferred that those matters were not taken into account by the magistrate. Furthermore, the magistrate also accepted, in effect, that the respondent had made substantial contributions to the mortgage, and had purchased items for the de facto property, from her cash savings (see [44] above). Also, the magistrate found that the respondent made the greater contribution in her parenting and home-maker role [119]. The magistrate concluded:

During cohabitation both made financial contributions to the acquisition and improvement of the [de facto] property. During the relationship both made cash deposits into the mortgage from the sale of properties owned by them. Overall it appears to me that [the appellant] made the greater financial contribution but that [the respondent] made the greater contribution in the parenting and home maker role. Notwithstanding the difficulties which [the respondent] alluded to as a result of [the appellant's] conduct, I find that there is little to distinguish the parties in their different roles in terms of their efforts and their financial contributions during the relationship.

85 No error, or at least no material error, is shown, in relation to the matters alleged in (a) or (b) of [83] above.

86 As to the alleged renovations to the Langford property at an estimated value of $100,000, referred to in (c) of [83] above, this matter has already been dealt with in ground 8.

87 As to the alleged finishings to the de facto property in the sum of $25,000, referred to in (d) of [83] above, the evidence to which the appellant referred at GB 74 and GB 179 is to the effect that it was expected that work would be done by the appellant on the de facto property, and that the work which it was proposed that the appellant would do would reduce the building contract sum by $20,000 - $30,000. They do not indicate what work was in fact done and its value. The appellant also referred to bank statements from the parties' joint account, which disclosed that certain items of hardware and the like were purchased from hardware stores (GB 127 - 143). However, the transactions are very few in number and in relatively small amounts of money. In summary, there is nothing in the evidence to which the appellant refers which indicates that the magistrate erred in fact or omitted to take into account material facts.

88 In relation to the items purchased for the de facto home in the sum of $25,000 (see (e) of [83] above), the appellant, in effect, relies upon three matters.

89 First, he refers to the invoices referred to in relation to ground 4 (GB 237 - 241). As noted under ground 4, those invoices were few in number and the amounts involved were relatively small. Secondly, the appellant referred to par 5 of his affidavit sworn 20 March 2012 (GB 152) in which he deposed, in essence, that he undertook work on the de facto home, including the installation of baths and exhaust fans, painting and laying wooden floors. He deposed that a number of the items used to carry out the work, as well as tiles and furniture were purchased by him from either the appellant's bank account or the parties' joint account. The appellant referred in this regard to bank statements of the joint account which he said showed examples of items purchased by the appellant. The bank statements to which he referred, as annexure A, were not in the materials before the court. However, the materials before the court did include certain bank statements of the parties' joint account from late 2004 to early 2006 (GB 127 - 143). These revealed a payment of $186, which was the third item on which the appellant relied in relation to the alleged purchases (GB 140). Apart from the $186 purchase referred to, and perhaps one other for $659.75 (GB 135), there do not appear to be any debits recorded in the bank statements that would reflect purchases of the items to which the appellant has referred, other than purchases from hardware stores which have been considered earlier at [87] above. Accordingly, the appellant has not established in this appeal that he spent approximately $25,000 on items for the de facto property.

90 Further, the magistrate evidently had regard to the appellant's evidence that he had purchased items for the property [29] and made findings to the effect that the appellant had, to some extent, purchased items for the de facto property [76], [82], [119]. The appellant's evidence included evidence to the effect that his father had gifted him money in that regard, although the magistrate noted that his father was unable to give evidence because he was infirm [29]. Further, the magistrate found that the appellant had retained most of the contents of the de facto home [115].

91 No error, or at least no material error, has been shown in relation to the matter alleged in (e) of [83] above.

92 In relation to the mortgage repayments (see (f) of [83] above) the appellant refers to certain bank statements for what appears to be the period 31 July 2004 - March 2006 (GB 128 - 143). The appellant relies upon the joint bank statements referred to in the respondent's witness statement in the primary court (GB 77, 127) and, on the respondent's evidence concerning the payment of the mortgage after they commenced cohabitation (GB 78).

93 It is difficult to discern from these bank statements how the appellant derived an estimate of $59,280 in respect of his alleged repayments of the mortgage (as page 4 of his affidavit indicates, the bank statements do not disclose this figure and the payments would appear to total approximately $31,000). Moreover, the bank statements cover a period which includes the period prior to the commencement of cohabitation, when the respondent made cash deposits into the mortgage from her savings [80]. Insofar as the appellant refers to the respondent's statement to the effect that the arrangement was that he would pay the mortgage and she would pay all the bills and groceries after the commencement of cohabitation (GB 78), the same passage of evidence indicates that the amount the respondent spent on bills and groceries was the same as the amount payable under the mortgage at the time. The appellant has not demonstrated error, or at least any material error, by the primary judge.

94 In relation to care for the children, the magistrate found that the respondent had played the greater role in that regard [94] and that the respondent had spent lengthy periods of time at her mother's home with the children [102].

95 Whilst the magistrate did not expressly refer to the question of whether the appellant cared for the children after work, it may be inferred that the magistrate understood that the appellant would likely have had some role, to some extent, in providing care for the children after he arrived home after work. No, or no material, error is shown. This complaint could not, in light of the magistrate's other findings, provide any justification for disturbing the magistrate's overall decision.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : S -v- D [2014] WASCA 224 (S)

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Costs - Appeal - Appellant wholly unsuccessful - Statutory considerations relevant to discretion

Family Court Act 1997 (WA), s 210A(2), s 237

K v R [2010] WASCA 237

T v L [2006] WASCA 46 (S)

1 REASONS OF THE COURT: These supplementary reasons deal with the costs of the appellant's unsuccessful appeal to this court. The appeal was brought pursuant to s 210A(2) of the Family Court Act 1997 (WA) (the Act).

2 The appellant seeks an order in the following terms:

[T]he parties be responsible for their own cost[s] ... or at most to share 50% of the burden of party/party cost[s] and to have [those] cost[s] assessed and taxed.

3 The respondent seeks an order that the appellant pay the costs of the appeal, effectively on the basis that the appellant was wholly unsuccessful.

5 Section 237 of the Act is applicable to the question of costs: K v R [2010] WASCA 237 [149]; T v L [2006] WASCA 46 (S). Section 237 relevantly provides:

1. Costs - FLA s. 117

(1) Subject to subsection (2) and sections 205SB and 242, each party to proceedings under this Act is to bear the party's own costs.

(2) If, in proceedings under this Act, the court hearing the proceedings is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (3), (5), (6A) and (6) and in accordance with any relevant rules, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.

(3) In considering what order (if any) should be made under subsection (2), a court must have regard to -

(a) the financial circumstances of each of the parties to the proceedings; and

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; and

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; and

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; and

(f) whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

In Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311, the High Court considered s 117 of the Family Law Act, which is comparable to s 237 of the Family Court Act. Stephen, Mason, Aickin and Wilson JJ said, as to the relationship between s 117(1) and s 117(2):

'It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s 117(2). As sub-s (1) is expressed to be subject to sub-s (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in 'a clear case' (315).'

Their Honours then noted that s 117(2) does not, as a matter of law, require the judge to specify the circumstances which justify the making of an order (315).

7 The appellant contends that costs should be ordered in the terms that he seeks, having regard to the following matters:

(a) he has paid all the costs of bringing the appeal;

(b) the 'main reason' the appeal was brought was to challenge a 'completely unjust and unbalanced' judgment of the Family Court and that the issue raised was of 'very real' importance as he was never in a 'stronger economic position';

(c) another reason the appeal was brought was to bring to the attention of the court a 'loophole where people in court proceedings may gift valuable assets away';

(d) the respondent 'may' claim there is a loan for the costs of the respondent, and the appellant challenges the existence of such a loan;

(e) the appeal was brought in the pursuit of natural justice, pursuing 'reasonable grounds' of appeal; and

(f) the respondent has greater financial resources than the appellant, and the appellant is on 'centrelink welfare'.

8 In relation to the matters in s 237(3)(a) and (b) of the Act, in this case there is no affidavit evidence addressing the parties' current financial circumstances. Neither party appears to be in receipt of financial assistance by way of legal aid. Whilst the appellant disputes the finding by the magistrate that the appellant was in a stronger economic position than the respondent [133], there is no evidence which would, for present purposes, support a finding to the contrary.

9 As to subsection (c) of s 237(3), there appears to us to be nothing in the conduct by either party which would make that matter a material consideration in this case. Also, subsections (d) and (f) of s 237(3) appear to have no application on the material before the court. As to s 237(3)(e), the appellant has been wholly unsuccessful. There is no matter otherwise relevant to the exercise of the court's discretion. In particular, the matters raised by the appellant in (a) - (e) of his submissions (see [7] above) have no relevance to, or at least in the particular circumstances of this case can be given no material weight in relation to, the proper disposition of the question of costs.

10 The circumstance that the appellant has been wholly unsuccessful in the appeal, in all the circumstances of this case, and in light of the parties' submissions, is sufficient to justify an order that the appellant pay the respondent's costs of the appeal, to be taxed if not agreed. The court should so order.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : S -v- D [2014] WASCA 224 (S2)

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Practice and procedure - Application to correct an alleged mistake after disposition of appeal and entry of final orders - Purported application under slip rule - Whether error as alleged - Discretionary considerations - Delay

Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 35

Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141

Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (No 2) [2011] WASCA 232; (2011) 42 WAR 224

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400

Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215

L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S)

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253

S v D [2014] WASCA 224

S v D [2015] HCASL 66

Stambulich v Ekamper [No 4] [2008] WASCA 189

Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17

The State of Western Australia v Wallam [2008] WASCA 117 (S)

1 REASONS OF THE COURT: This matter came to a hearing by way of a registrar's notice to attend dated 18 November 2015 to consider the appellant's application dated 4 August 2015 (the appellant's application). The appellant's application is in the following terms:

1. That a motion dealing with the Judgment in case CACV150/2012 entered on the 1st December 2014 be very [sic] to review it Judgment and to add a supplementary reason for Judgment dealing with the slip rule and General power to set aside judgment or order UNIFORM CIVIL PROCEDURE RULES 2005 - REG 36.15 / REG 36.17.
2. The respondent be allowed 28 days to file a response.
3. The Judgment of the Supreme Court of Western Australia be set aside and a supplementary Judgment be pronounced.
4. The decision of the Family Court of Western Australia be Quashed.
5. The Family Court be ordered and directed to retrial that part of the trial dealing with the affidavit of the respondent[']s Mother[']s affidavit according to law. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Article 14 (3)(b).

2 The appellant appealed to this court from a decision of family law Magistrate Duncanson (as her Honour then was) delivered on 4 December 2012 concerning a property settlement in relation to a de facto relationship: D and S[1] (primary reasons). On 1 December 2014, this court dismissed the appeal: S v D[2] (Court of Appeal reasons). Subsequently, the appellant applied for special leave to appeal to the High Court of Australia. On 6 May 2015, that application was dismissed: S v D.[3]

3 In substance, following the dismissal of the appellant's application for special leave to appeal to the High Court, the appellant applies for orders under the slip rule to correct an alleged mistake in the Court of Appeal reasons.

4 Order 21 r 10 of the Rules of the Supreme Court 1971 (WA) (RSC) provides:

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal. (emphasis added)

See also r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).

5 The appellant's application should be dismissed for a number of reasons, not the least of which is that the appellant has not established that there was any error in the judgment of this court which would entitle him to the orders he now seeks.

6 The appellant and the respondent were in a de facto relationship for just under four years. Upon the break-up of their relationship, they were unable to agree as to the division of their property. Proceedings in the Magistrates Court were consequently commenced at some time in 2010 in PTW 1285 of 2010.

7 A significant aspect of the appellant's claim in the primary proceedings concerned the respondent having a joint interest in a property with her mother and her sister (the property).[4]

8 Prior to trial, on 26 June 2012, the respondent's mother swore an affidavit in the primary proceedings (the respondent's mother's affidavit).[5] The respondent's mother's affidavit was particularly significant to the appellant's claim in respect of the property.[6]

9 There was no evidence in the Green Book in the appeal as to when the respondent's mother's affidavit was served.

10 On 2 - 4 July 2012, the matter was heard in the Magistrates Court.[7] Excerpts of the transcript of the primary proceedings on 3 - 4 July 2012 were included in the Green Book in the appeal. The excerpts disclosed, in relation to the respondent's mother's affidavit and the cross-examination of the respondent's mother, that:[8]

• the respondent's mother was called and sworn at around 2.51 pm on 3 July 2012;
• the respondent's mother testified on oath as to the truth of the contents of her affidavit sworn on 26 June 2012;
• the appellant asked the respondent's mother four questions in cross-examination before stating he had no more questions to ask;
• Magistrate Duncanson emphasised the importance of the cross-examination of the respondent's mother in relation to one of the properties, and asked the appellant whether he had stopped the cross-examination because he had found it too difficult;
• the appellant indicated he did not want to put the respondent's mother under any further stress;
• the respondent's mother indicated several times that she would answer any question put to her;
• the appellant asked for a short adjournment, which was granted; and
• after the adjournment, the appellant maintained that he had no further questions to ask the respondent's mother.

11 On 4 December 2012, Magistrate Duncanson handed down judgment in PTW 1285 of 2010, adjusting the parties' interests in the assets of the relationship to the extent that the appellant was to receive 40% of the assets and the respondent 60% of the assets.[9] Magistrate Duncanson did not refer to any objections made by the appellant in regard to the respondent's mother's affidavit.

12 On 19 December 2012, the appellant filed an appeal notice challenging the primary decision.

13 Ground 2 of the appellant's appeal alleged:[10]

1. The Primary Court had error in law due to the fact that [the respondent's mother] was unable to be cross examined at trial due to her emotional state. The primary court was obligated to adjourn the trial until the witness [the respondent's mother] had control of her emotions. Evidence Act 1906 (WA) s 106R. Because of this error to testify. [sic] The Applicant was denied natural justice.

14 The appellant's written submissions, filed as part of the appellant's case, in relation to this ground included:[11]

1. The Primary Court had error in law due to the fact that [the respondent's mother] was unable to be cross examined at trial due to her emotional state. [The mother's affidavit] had been submitted into court on the day of the trial only allowing one night to inspect and come up with questions dealing with the affidavit.
2. The court had told all parties concerned to have affidavits filed 14 days prior to trial. [The respondent's mother] was incapacitated to appropriately give evidence about this affidavit due to her emotional outbreak. Please see the affidavit evidence of [the respondent] dated 09/02/2012 to support the emotion capacity of [the respondent's mother] dealing with her Anxiety/Panic Attacks see Page 03 Paragraph 02 of [the respondent's] Affidavit.

15 At the oral hearing of the appeal, the appellant commenced his submissions with respect to ground 2 as follows:[12]

APPELLANT: Now, for my second submission, your Honour, I believe - this is a bit of a difficult one. Your Honour, when we were at court - the trial started on - actually 2 July. I know the transcripts go from the 3rd but the very first court date - the very first trial date was on 2 July. Now, the reason why we didn't actually start from 2 July onwards is because there were a few matters that had to be taken care of before the trial could actually proceed.

What happened was on that particular day - I've got a few little notes here. It's unfortunate that I didn't actually have this put into - or had it - I've got it printed out at home. It's a transcript but I didn't actually insert it into the Green Books. That's my fault obviously. But on 2 July at approximately 3.07 on the transcript recording, counsel for [the respondent] handed up to court an affidavit of [the respondent's mother]. (emphasis added)

16 The following exchange then occurred:[13]

APPELLANT: Now, that particular document - there was an actual court order that was put into place for that to have been handed into court 14 days prior to trial. Now, that actually didn't occur. On 2 July I actually objected to the affidavit being submitted due to the short period of time.

If I had have known this affidavit was going to be in court I may have actually asked the court for an extension of - for an extension of time or to - for the callover to be put back a little bit later because, really, when that - that affidavit came through and with the contents of it, what I would have liked to have done if I had the time, I would have actually subpoenaed bank statements to perhaps show that these payments were coming directly from [the respondent's mother]. Maybe that [the respondent's mother] was paying the bills for the property. Maybe the - basically different aspects to deal with when someone purchases the property, I would have maybe had the opportunity to go through all that.

BUSS JA: Well, this seems to relate to a different matter than your submission (2) - - -

APPELLANT: Yes.

BUSS JA: - - - which I think involves an allegation by you that you were denied procedural fairness because you were unable properly to examine [the respondent's mother] - - -

APPELLANT: Yes, your Honour.

BUSS JA: - - - as a result of her emotional condition.

APPELLANT: Yes.

BUSS JA: Which I think is the point that you raise.

APPELLANT: Yes.

BUSS JA: This seems to go to some different point - - -

APPELLANT: Okay. I - - -

BUSS JA: - - - that isn't in the grounds of appeal. Am I correct in understanding that? It seems to me that your point is that there was a miscarriage of justice in essence because your cross-examination of [the respondent mother] was truncated or derailed because of her emotional state.

APPELLANT: Yes, your Honour. If your Honours have the opportunity to actually listen to the real recording, you will hear certain people in the background. For example, the courtroom security asking [the respondent's mother] if she's - if she's all right because as [the respondent's mother] walked in, she was - she was actually crying. I couldn't understand why ...

BUSS JA: Yes. Yes.

APPELLANT: The - not the first paragraph but the second one where it says:

And a little bit further down it does - [the respondent] goes on to say:

'We hoped this would reduce her panic attacks.'

Now, that clearly shows that perhaps maybe something may - could have been done to help [the respondent's mother] in the courtroom.

Now, unfortunately for myself, when I see a person in distress it actually physically affects myself as well, so if I see someone emotionally upset, I will - I will start to feel that myself for some reason. I don't know why. That's - that's my - now, due to the fact that [the respondent's mother] was also in that state and also I was also getting to that same point that I was starting to get upset because [the respondent's mother] was upset, it was quite impossible to - to question [the respondent's mother] at that time. Maybe even a - a - a recess, like, to adjourn [the respondent's mother]'s questioning until the next day would have been more appropriate maybe.

BUSS JA: So your point is that although the Magistrate did adjourn the proceedings, the adjournment wasn't of a sufficient length?

APPELLANT: Yes, your Honour.

BUSS JA: And the end result of that is that [the respondent's mother] was unable, in your view, to be properly cross-examined and her distress produced distress in you which affected your ability to cross-examine. Is that it in a nutshell?

APPELLANT: Yes, your Honour. That's basically it in a nutshell.

BUSS JA: All right.

APPELLANT: And I - I believe it all comes back, the reason why [the respondent's mother] was so stressed-out is - is because the reason that she does unfortunately suffer from some anxiety and maybe some anxiety attacks, and I believe that that was the main reason why [the respondent's mother] was in such a state at that time.

BUSS JA: All right.

APPELLANT: And - and - and also if we - if we can maybe turn to page 177 of the Green Book. That will be volume 2, please. And if we - I think it's - it's nearly all the way to the bottom of the page. It's the - one paragraph up from the bottom, and even [L, the respondent's sister] in her affidavit has stated that:

'Mum was also not coping well. She'd go to have panic and anxiety attacks.'

I truly believe that that - that's - that is the reason why [the respondent's mother] wasn't - why I could cross-examine her - due to that fact.

17 On 1 December 2014 this court dismissed the appeal, including ground 2.[14] In the Court of Appeal reasons, the court made the following findings with respect to ground 2 of the appeal:[15]

This ground alleges that the magistrate erred by not allowing the respondent's mother to be cross-examined. The appellant submits that the magistrate was 'obligated to adjourn the trial or make orders until [the respondent's mother] had control over her emotions or to make orders for [the respondent's mother] to be able to give appropriate evidence at trial on another day' or that the magistrate should have organised arrangements whereby the respondent's mother had a person near her while giving evidence to provide her with support or that she have a communicator relaying her answers to the court. To that end, the appellant referred to s 106R of the Evidence Act 1906 (WA) which deals with 'special witnesses' for whom such arrangements can be made. The appellant contends that this error resulted in a denial of natural justice, as cross-examining the respondent's mother would have made a 'significant contribution' to the facts at trial.

The respondent submits that the appellant had the opportunity to cross-examine the respondent's mother, however declined to do so and that, in essence, the appellant's submissions in support of this ground are at 'entire odds with the events in the [primary] court as recorded in the transcript'.

The magistrate said in this regard:

'Both parties and their witnesses were emotional during the proceedings. [The appellant] was unable to cross-examine [the respondent's mother]. She was a very nervous lady and obviously apprehensive about giving evidence. [The appellant] broke down when cross-examining her and was unable to continue. After a short break I invited him to do so but he said that he had no questions for [the respondent's mother]. Given the importance of her involvement particularly with respect to the [Canning Vale property] I informed [the appellant] of the possible consequences if he did not cross-examine her about her evidence regarding [the respondent's] interest in that property. He declined to do so [38].'

The relevant transcript of the trial (GB 15 - 16) supports the magistrate's reasons at [38] and confirms the respondent's submissions.

18 In relation to, inter alia, the contention raised at the hearing by the appellant concerning the late admission of the respondent's mother's affidavit, the court said:[16]

At the hearing of the appeal the appellant made two further submissions. One was to the effect that the affidavit by the respondent's mother was served late and he was unable to address it properly. The second was that while he asked for, and obtained, a short adjournment before the respondent's mother completed her evidence by reason of the appellant's concern that she was too distressed to proceed, the adjournment was too short. As to the first submission, there is no evidence that the appellant objected to the mother's evidence on the ground of lateness. As to the second submission, the appellant did not communicate to the magistrate that he considered that the adjournment was too short at the time. Neither submission identifies any error by the magistrate. (emphasis added)

The evidence in the appellant's application

19 Each party filed two affidavits in relation to the appellant's application. The appellant's affidavits were sworn 3 July 2015 and 14 October 2015.

20 In his affidavit sworn 3 July 2015, the appellant deposed:

1. This Motion that is before the Supreme Court deals with a Slip or Omission that is incorrect and I'm seeking relief from the court to correct that mistake and to vary the orders.

21 The appellant in his affidavit of 3 July 2015 identified the 'Slip' that needed to be corrected as the italicised finding referred to in [18] above, ie, the finding that there was no evidence before the court to show that the appellant had objected to the respondent's mother's evidence on the ground of lateness.

22 Also in his affidavit of 3 July 2015, the appellant annexed extracts from the transcript of the trial in the primary court dated 2 July 2015 which had not been included in the Green Book at the hearing of the appeal.

23 The respondent's affidavits were sworn on 11 September 2015 and 25 September 2015. In her first affidavit, the respondent deposed, in effect, that she had given to the appellant a copy of her mother's affidavit at the Family Court on 26 June 2012. In her affidavit of 25 September 2015, the respondent effectively resiled from that evidence and essentially stated that having gone through her 'old emails', she had discovered an email dated 28 June 2012 which annexed an unsworn copy of her mother's affidavit, and said that the email with its annexure was sent to the appellant on 28 June 2012.

24 In his affidavit sworn 14 October 2015, the appellant stated that he has never seen or received a sworn version of the respondent's mother's affidavit;[17] that the respondent's mother's affidavit was never filed;[18] and that he did not have a personal computer at this time as his computer had 'burnt out its mother board due to dust', leaving him in a position of having to rely on his brother's computer to prepare for the primary proceedings.[19]

25 The transcript of the hearing on 2 July 2012, part of which was annexed to the appellant's affidavit of 3 July 2015, and part of which was annexed to the appellant's written submissions, indicated the following.[20]

26 On 2 July 2012, the trial commenced. At some point on the first day (at what appears to be around 2.27 pm), the respondent's counsel sought leave to rely on the respondent's mother's affidavit. It appears from the transcript that the affidavit was already in the court file (ts 23, line 5). The following exchange occurred between Magistrate Duncanson and the appellant:

HER HONOUR: ... [A]re you opposed to the applicant relying on this document?

[APPELLANT]: Your Honour ... I'm not opposed to the affidavit itself being submitted to court. The only thing I am opposed to is the short notice of this affidavit being---

HER HONOUR: Yes.

[APPELLANT]: --- submitted to the court. Like, it really- I don't have enough time to go through that and - and figure out what type of questioning I will be ---

HER HONOUR: Okay.

[APPELLANT]: --- obtaining or ---

HER HONOUR: [B]ecause you're self-represented I can explain to you how I would normally deal with this. I'm minded to accept it for filing and allow the [applicant] to rely on it because it's just that it seems to me that it will give me evidence which I may well require in trying to assess contributions, particularly because of the involvement of the applicant's mother in the property that they owned.

[APPELLANT]: Yes.

...

HER HONOUR: Now, she will give evidence because you would require her for cross-examination, would you?

[APPELLANT]: Yes, your Honour.

HER HONOUR: ... I also understand that you only know as of now that the affidavit will be allowed in, so what would you like to do? You have options, [the appellant]. You don't I presume, want to delay the trial, do you?

[APPELLANT]: No.

...

HER HONOUR: The only alternative I can think of, if you would prefer, is that I can stop the proceedings now and give you overnight to prepare your case, now that you know what that this is part of it, and that we could start tomorrow morning at 10 o'clock, but give you ... this afternoon and this evening to prepare ---

[APPELLANT]: Right.

HER HONOUR: - - - given that there is now this additional evidence coming in. Would that help you?

[APPELLANT]: I'm not too sure. Basically, when I was going through [the respondent's] affidavit - that took me close to two and half weeks to- to come up with questions just from that affidavit alone. Her sister['s]... affidavit, that took me about a week and a half.

HER HONOUR: how many - have you got a lot of questions?

[APPELLANT]: I did have but a lot of them have - are ---

HER HONOUR: About the children.

[APPELLANT]: Yes, about the children and a lot of them I - are not basically going to be submissible because, like, we don't need to worry about that any more now.

HER HONOUR: That's right.

[APPELLANT]: I haven't - I haven't even attempted to read it yet.

HER HONOUR: I'm more than happy to adjourn the proceedings until tomorrow at 10 o'clock if you want to ---

[APPELLANT]: To go through it.

HER HONOUR: - - - consider this additional evidence, bearing in mind that the applicant will go first, so you - - -

[APPELLANT]: Yes.

HER HONOUR:- - - would have her first, and then I don't know what order she will call her witnesses.

[APPELLANT]: The other problem I have is I believe [the respondent] will be opposing some of my witnesses. I'm not too sure why.

HER HONOUR: I will just find out if we can see what we can sort out at the moment.

[APPELLANT]: Yes.

HER HONOUR: But - all right. To the extent that I've had to make the decision I would be minded to allow this evidence in.

[APPELLANT]: Yes.

HER HONOUR: Because it's important that I have all relevant evidence.

[APPELLANT]: Yes.

HER HONOUR: But I'm certainly prepared to not start till tomorrow morning to give you an opportunity to review your case if you would like to.

27 The appellant filed written submissions on 24 August 2015 and 16 October 2015. The respondent filed written submissions dated, relevantly, 24 September 2015.

28 The appellant submits, in effect, that:[21]

• the issue concerning his objection to the late admission of the respondent's mother's affidavit was raised in pars 11 and 12 of his written submissions;
• the oral submissions made by the appellant at the hearing in the appeal related to pars 11 and 12 of his written submissions;
• he informed the court that the evidence of his objection to the late admission of the respondent's mother's affidavit was in the transcript of the trial, and that he told the court the time in the recording at which the objection could be found; and
• due to funding and time, the appellant failed to include a copy of the whole transcript, or the relevant excerpts of the objections to the respondent's mother's affidavit, in the Green Book.

29 The appellant's submissions also canvassed alleged errors by the primary court in dealing with the respondent's mother's affidavit. The appellant alleged, in effect, that the primary court made three errors in this regard.

30 First, the appellant alleges that the appellant did not have adequate time to prepare for a defence. The appellant submits that the respondent's mother's affidavit was 'surprise evidence'; that the affidavit had not been part of any 'evidence before the trial or part of any disclosure prior to trial'; that the consideration of the affidavit was contrary to the parties being told to have all evidence into court prior to trial, and to supply the other side with any evidence that was to be relayed at trial 14 days prior to trial; that the respondent's counsel deliberately 'ambushed' the appellant by admitting the affidavit into court on the day of the trial, being a tactic to 'bamboozle' a self-represented litigant; that it took the appellant sometime during the hearing to obtain a full copy of the affidavit; and that the appellant told the magistrate that he opposed the late filing of the affidavit.[22] The appellant further submits that in consequence of the inadequate time to 'prepare both physically and emotionally' to deal with the affidavit led to 'inadequate questioning', or cross-examination, of the respondent.[23]

31 The appellant also disputes that his preparation to cross-examine the respondent was 'transferable' to the respondent's mother because the respondent's claim in relation to the relevant property was 'entirely different' to the respondent's mother's claim.[24]

32 Secondly, the appellant alleges that he did not have 'adequate facilities to prepare for an adequate defence', in terms of documents and other forms of evidence to 'prove or disprove points contained in the affidavit'. In that regard, the appellant submits he was denied the opportunity to subpoena documents from the respondent's mother, such as her bank accounts, water rates, bank mortgage accounts concerning a certain property, tax records and social security payments.[25] The appellant also submits that as a self-represented litigant he should have been given more than one night to deal with 'such an important' document and thereby was denied natural justice to properly address the affidavit.

33 Thirdly, the appellant alleges that the primary court did not provide him with adequate assistance as a self-represented litigant. In that regard the appellant's submissions overlap with those in support of the first and second alleged errors. The appellant submits that the magistrate only afforded him two options to respond to the affidavit, being to continue with the trial or to consider the affidavit overnight.

34 The respondent submits that the appellant's submissions in support of his application to set aside this court's orders were not part of his submissions in support of ground 2 of the appeal.[26]

35 In relation to the application of the slip rule, the respondent submits, in effect, that the slip rule does not apply because its application is limited to the correction of an error arising from an accidental slip or omission or a clerical error, and because the appellant is not appealing to this court from its own perfected order. The respondent also submits, in effect, that as this court has no inherent jurisdiction to reopen or reconsider a formally recorded order,[27] and as the slip rule does not apply, the appellant's application should be dismissed.

36 In relation to the alleged errors made by the primary court, the respondent submits, in effect, that:[28]

• Magistrate Duncanson was prepared to adjourn the trial on the 2 July 2012 to give the appellant time to prepare for cross-examination of the respondent's mother;[29]
• whilst the appellant was served with the respondent's mother's affidavit late, he was provided with a copy on 28 June 2012 by email sent from the respondent to the appellant;[30]
• the evidence contradicts the appellant's evidence that he only had one night to prepare to cross-examine the respondent's mother; and
• the appellant had prepared to cross-examine the respondent with respect to the property in issue to which the respondent's mother's evidence was relevant, and as such could have put those same questions to the respondent's mother in response to the respondent's mother's affidavit.

37 Before addressing the relevant principles, it is convenient to recall the requirements of the relevant rules of court concerning the preparation of appeal books.

38 Part 5 r 35 of the Court of Appeal Rules provides:

An appeal book, containing the documents required for the hearing of the appeal, is required for every appeal except an interlocutory civil appeal, unless a single judge orders otherwise in a particular appeal.

39 Part 5 r 38 of the Court of Appeal Rules, relevantly reads:

(1) Subject to rule 40, an appeal book must be comprised of 3 separate parts as follows -

(a) the first part, comprised of as many numbered volumes as are necessary with white covers, to be referred to as the 'White Appeal Book';

(b) the second part, comprised of as many numbered volumes as are necessary with light blue covers, to be referred to as the 'Blue Appeal Book';

(c) the third part, comprised of as many numbered volumes as are necessary with light green covers, to be referred to as the Green Appeal Book.

(4) The Green Appeal Book must contain these documents in this order -

(c) the relevant parts of the primary court's transcript[.] (emphasis added)

40 In the absence of a statutory provision to the contrary, and subject to certain limited exceptions, the Court of Appeal has no jurisdiction to reopen or reconsider an extracted order: The State of Western Australia v Wallam;[31] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission;[32] Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [No 2];[33] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] (Professional Services of Australia).[34] This court also has no general statutory power, express or implied, to reopen and reconsider perfected orders, civil or criminal.[35]

41 The slip rule in RSC O 21 r 10 is one of the narrow exceptions.

42 In Achurch v The Queen, the plurality observed:[36]

The slip rule as an aspect of the inherent or implied powers allows for limited correction of an order after its final entry, as was explained in Burrell:

'The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.'

(Footnote omitted.) The power conferred under the slip rule 'is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation (footnotes omitted)'.

43 The principles concerning the application of the slip rule were recently considered by this court in Professional Services of Australia, where Martin CJ (Buss & Newnes JJA agreeing) said:[37]

The cases in this and other comparable jurisdictions where similar rules of court exist establish a number of general principles which govern the application of the slip rule. First, the slip or omission which is said to have given rise to the error must be properly characterised as inadvertent or accidental - the product of oversight rather than afterthought [L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590; Gould v Vaggelas (1985) 157 CLR 215, 275 (Gibbs CJ, Wilson, Brennan & Dawson JJ); Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 (S2) [23] (Allanson J); Kokos International Pty Ltd v Libra Motors Pty Ltd [No 3] [2007] WASC 301 [67] (Johnson J)]. Second, the 'error' said to arise from the accidental slip or omission must be such that its correction does not require the exercise of an independent discretion nor is it a matter upon which a real difference of opinion might exist [Mandurah Enterprises [8]].

These principles are conveniently illustrated by some of the cases on the topic. In each of Shaddock, Gould and Orchard Holdings, orders were made under the slip rule allowing interest on the judgment sum in cases in which the legal representatives of the parties inadvertently omitted to ask for interest, and there was no doubt that interest would have been allowed if requested at the time of judgment. On the other hand, in Mandurah Enterprises, an application under the slip rule for an order setting aside the orders for costs made by the primary judge was dismissed because the arguments in favour of such an order were neither obvious nor compelling.

44 The court's power to amend orders under the slip rule is discretionary.[38] In Gould v Vaggelas,[39] the plurality said:

[T]he jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation.

45 Further, in Shaddock,[40] the plurality observed:

[A]n order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made (see Tak Ming [[1973] 1 WLR 306; [1973] 1 All ER 572]; and the cases there cited). In the present case, there was considerable delay in filing the notice of motion ... The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule.

46 In Esther Investments Pty Ltd v Markalinga Pty Ltd (Esther Investments), Malcolm CJ observed:[41]

[T]here is an interest in the finality of litigation, and a party is entitled to order its affairs on the basis of a judgment regularly obtained, entered and perfected in the court.

47 Having considered carefully all the appellant's arguments, the appellant's application should be dismissed for the following reasons.

48 First, there was no error. The court correctly concluded that there was no evidence before it that the appellant had objected to the respondent's mother's evidence on the ground of lateness. The evidence upon which the appellant now seeks to rely was omitted from the Green Appeal Book. Also, the appellant at the oral hearing of the appeal both recognised and accepted that there was no evidence to that effect (see [15] - [16] above). That point is alone sufficient to dispose of the application.

49 Further, there was in any event no 'accidental' slip or omission, even by the appellant. The appellant's contention that he omitted the transcript of evidence due to funding and time constraints might explain why the evidence was not before this court, but it does not transform the character of the omission into an 'accidental' one.

50 Next, discretionary relief could not be given in these circumstances in any event. Two matters are relevant. One is that the point had no bearing on the outcome of the appeal. Although the appellant informed the magistrate that he was 'opposed to the short notice of [the respondent's mother's] affidavit', he was offered an adjournment until the next day, and accepted it without further complaint at the time. Nor is there before us any evidence that he made any complaint at the resumed hearing. Although the appellant's arguments in this application were to the effect that her Honour should have granted a longer adjournment, those arguments are a fresh attack on the primary decision in respect of which the appeal has been concluded, and are not directed to any accidental slip or omission in this court. Related to this point is that, in the course of oral argument in the appeal, the appellant accepted that 'in a nutshell' his real complaint in the appeal was not the lateness of the affidavit, but the difficulty he had in cross-examining the respondent's mother arising from her alleged emotional distress at the time. Moreover, the point now sought to be agitated was not included in the grounds of appeal.

51 The other discretionary point concerns delay. The appellant's application was made nearly 20 months after this court had dismissed his appeal. The delay was inordinate. The appellant proffered the explanation that he did not know that there was a 'slip rule' under which he could apply until a 'friend, that is quite well-educated in law'[42] pointed it out to him. Putting aside for the moment that any person 'well-educated in law' could not sensibly have advised the appellant to bring this application, the importance of the principle of finality of litigation applies to all litigants, both represented and in person. In this case, the litigation commenced in 2010, and has extended over some five years. The appellant has taken it to the High Court of Australia before raising this point. Adopting and adapting the language of Malcolm CJ in Esther Investments, the respondent was entitled to order her affairs on the basis that the litigation between these parties, in relation to the issues raised on the appeal to this court, had finally been concluded at least after the disposition of the appellant's application for special leave.

52 The appellant's application, whether under the slip rule or on any other basis contemplated by the appellant, should be dismissed.

[1] D and S [2012] FCWAM 79 (primary reasons).

[2] S v D [2014] WASCA 224 (Court of Appeal reasons).

[3] S v D [2015] HCASL 66; P2/2015.

[4] See primary reasons [41] - [60].

[6] Primary reasons [38], [58]; GB 15.

[14] S v D [2014] WASCA 224.

[15] S v D [2014] WASCA 224 [37] - [40].

[16] S v D [2014] WASCA 224 [41].

[17] Appellant's affidavit, 14/10/2015, par 7.

[18] Appellant's affidavit, 14/10/2015, par 5.

[19] Appellant's affidavit, 14/10/2015, pars 3 - 4.

[20] See appellant's affidavit, 03/07/2015 and appellant's submissions, 24/8/2015, to which more pages of the transcript of 02/07/2012 are attached.

[21] See appellant's submissions, 24/08/2015, pars 10 - 12; appellant's affidavit, 03/07/2015, pars 4 - 13.

[22] Appellant's submissions, 24/08/2015, pars 2 - 6.

[23] Appellant's submissions, 24/08/2015, par 7.

[24] Appellant's submissions, 16/10/2015, par 24.

[25] Appellant's submissions, 16/10/2015, par 22.

[26] Respondent's submissions, 14/09/2015, par 23.

[27] Respondent's submissions, 14/09/2015, pars 1 - 9, citing Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529.

[28] Respondent's submissions, 14/09/2015, pars 10 - 23.

[30] Respondent's submissions, 14/09/2015, par 15, read with the respondent's affidavit, 25/09/2015.

[31] The State of Western Australia v Wallam [2008] WASCA 117 (S) [6] - [17], [42].

[32] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S) [10] (McLure JA, Buss & Murray AJA agreeing).

[33] Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [No 2] [2011] WASCA 232; (2011) 42 WAR 224 (McLure JA, Martin CJ & Buss JA agreeing).

[34] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [26] (Martin CJ, Buss & Newnes JJA agreeing).

[36] Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141, 154 [18]; see also Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52 [8].

[37] Professional Services of Australia [28] - [29].

[38] See, for example, Kokos [66]; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409 (Malcolm CJ); Professional Services of Australia [33].

[39] Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 275 (Gibbs CJ, Wilson, Brennan & Dawson JJ).

[40] L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590, 597.

[41] Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409. See also Stambulich v Ekamper [No 4] [2008] WASCA 189 [28] - [31] (Pullin JA & Newnes AJA agreeing); Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 (S) (Reasons of the Court).