ALFARO v BROKESOVA [No 2]

[2013] WASCA 189

ALFARO -v- BROKESOVA [No 2] [2013] WASCA 189

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 189
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:101/2012	Heard:	13 JUNE 2013
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	20/08/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Appellant's case struck out with liberty to replead
Category:	B
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Parties:	KALI ALFARO SANDRA BROKESOVA
Catchwords:	Practice and procedure Appellant's case struck out for failure to comply with Supreme Court (Court of Appeal) Rules 2005 (WA)
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 32
Case References:	Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Devereaux-Warnes v Hall [2006] WASCA 268 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALFARO -v- BROKESOVA [No 2] [2013] WASCA 189 CORAM : PULLIN JA

NEWNES JA
MURPHY JA

HEARD : 13 JUNE 2013 DELIVERED : 20 AUGUST 2013 FILE NO/S : CACV 101 of 2012 BETWEEN : KALI ALFARO

Appellant

AND

SANDRA BROKESOVA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WISBEY DCJ

Citation : ALFARO -v- BROKESOVA [2012] WADC 122

File No : CIV 3311 of 2010

Catchwords:

Practice and procedure - Appellant's case struck out for failure to comply with Supreme Court (Court of Appeal) Rules 2005 (WA)

Legislation:

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

Result:

Appellant's case struck out with liberty to replead

Category: B

Representation:

Counsel:

Appellant : Mr G Stubbs
Respondent : Ms B Mangan

Solicitors:

Appellant : Dwyer Durack
Respondent : Brian C Sierakowski

Case(s) referred to in judgment(s):

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Devereaux-Warnes v Hall [2006] WASCA 268
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513



1 REASONS OF THE COURT: This appeal was listed for hearing on 13 June 2013. It became apparent, during the early part of the hearing of the appeal, that the appellant's grounds of appeal and case were seriously defective and the appellant was invited to show cause why the appellant's case should not be struck out. In particular, the appellant's grounds:

(1) were extremely prolix (50 grounds, many with subparagraphs);

(2) made numerous attacks on the judge's findings of fact in which there appeared confusion about whether the alleged errors were errors with respect to inferences drawn as to the undisputed primary facts, or errors made in the findings of primary fact;

(3) were defective in that they alleged errors of law with respect to numerous findings of fact without identifying any error of law;

(4) were defective in that they alleged a denial of natural justice by the primary judge on the asserted basis that the appellant had not been given an opportunity to address at all certain matters when, at least with respect to a number of such matters, that appeared not to be the case.

2 In addition, the appellant had not complied with practice direction 7.4.

3 Rule 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) relevantly provides that:

(4) The document titled 'Appellant's grounds of appeal' -

…

(b) must state the grounds, and concise particulars of them, succinctly in numbered paragraphs and must not merely allege -


(i) that the primary court erred in fact or in law;

(ii) that the primary court's decision is against the evidence or the weight of evidence or is unreasonable and cannot be supported having regard to the evidence[,]

…

and


(c) must state, for each ground, whether it is -

(i) an error of fact;

(ii) an error of law; or

(iii) an error of mixed fact and law.

(5) The document titled 'Appellant's submissions' -

(a) must, for each ground of appeal, contain the appellant's written submissions (or argument) expressed so as to convey the substance of them clearly and as succinctly as possible;

…

(c) must include references to -


(i) each page number of the primary court's transcript on which relevant material appears;

(ii) the number of each exhibit in the primary court that is relevant[.]

…

4 In Civil Procedure in Western Australia [3925.6], Kendall and Curthoys observe that:

Rules 32 draws together and reinforces the principles which guided the former practice. It had long been said that grounds of appeal are intended to be simply and shortly stated: Sansom v Sansom [1956] 3 All ER 446. The practice of drawing multiple grounds which restated the same point in several different ways and in no particular order was confusing, unnecessary, and to be discouraged: Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 at 81, 87; [1999] WASCA 158; BC9905687 at [1], [36] (FC). Grounds of appeal are to be formulated with clarity and the manner in which the trial judge is said to have erred in law or in fact should be clearly identified as must any facts which it was contended he or she should have found: Festic v Atkinson (WASC, Full Court, Lib No 8484, 19 September 1990, unreported, BC9001118).

5 Practice direction 7.4 serves the important purpose of seeking to ensure that practitioners do not make allegations of factual error which, objectively, enjoy no reasonable prospects of success, by directing attention to the evidence which supports the findings of fact made by the judge. Practice direction 7.4 provides, inter alia:

2. When an appellant relies on a ground of appeal which requires the Court of Appeal to undertake a review of the evidence, the appellant's case must identify in the appellant's submissions or in a schedule, not only the evidence which supports the appellant's ground, but also all the evidence which supports the verdict or the finding of fact of the primary court which is challenged.

3. The respondent's answer must state whether the respondent agrees that all relevant evidence has been identified in the appellant's case, and if not, to refer to any such evidence that the appellant failed to identify.

…

5. Evidence which is identified must be identified by reference to a transcript page, exhibit or an unchallenged finding of fact.

6. If a party is represented by a lawyer, the lawyer must sign a certificate that this Practice Direction has been complied with, and type or legibly print his or her name under the signature. (emphasis added)

6 The deficiencies in (1) and (2) in [1] above were self-evident.

7 The appellant's counsel conceded in substance the matters in (3) and (4) of [1] above and that there had not been compliance with practice direction 7.4 (ts 5 - 6, 8, 10 - 16, 24, 27 - 33). The appellant's counsel said in effect that he thought that practice direction 7.4 only required him to provide references to the evidence which were contrary to the finding of fact under challenge, rather than references to the evidence both for and against the finding. That misconception of practice direction 7.4 explained, but did not excuse, the failure to comply with it.

8 It is to be recalled that the judgment at first instance is not just a step on the way to the resolution of the parties' rights. The proceedings at trial are not to be regarded as 'little more than a preliminary skirmish': Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 - 8. See also Martin CJ in Devereaux-Warnes v Hall [2006] WASCA 268 [2].

9 As Mason and Deane JJ said in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519:

In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

10 The appellant's case provided no comprehensible or reliable framework within which to identify and correct (alleged) error. It did not comply with r 32 of the Supreme Court (Court of Appeal) Rules and it did not comply with practice direction 7.4. The appellant's counsel was unable to show cause why the appellant's case should not be struck out. Accordingly, the court struck it out with liberty to file and serve a substituted case.