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
PDF Version

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASCA 189
Decision Date: 20 AUGUST 2013

CaseChat Overview and Summary

In the case of Alfaro v Brokesova [No 2], the appellant, Alfaro, sought to appeal against a decision made by the trial judge in a personal injury matter. The nature of the dispute involved claims for damages arising from a motor vehicle accident. The Court of Appeal in Western Australia was tasked with determining whether the appellant's case should proceed or be struck out due to non-compliance with the Supreme Court (Court of Appeal) Rules 2005 (WA).

The primary legal issue before the court was whether the appellant had complied with Rule 48 of the Supreme Court (Court of Appeal) Rules 2005 (WA), which sets out the requirements for the service of a notice of appeal and the contents of the appellant's case. Specifically, the court had to determine whether the appellant's failure to provide a concise statement of the case, as required by the rules, was sufficient grounds for striking out the appellant's case. Additionally, the court examined whether the appellant's submissions and the evidence provided were adequate to allow the court to determine the appeal.

The court held that the appellant had not complied with the procedural requirements outlined in Rule 48 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The appellant's notice of appeal and accompanying documents failed to include a concise statement of the case, and the submissions provided were insufficient for the court to determine the appeal. The court found that the appellant's case was struck out due to these procedural failures, but noted that there was liberty to replead. This means that the appellant had the opportunity to correct the deficiencies and resubmit the case in compliance with the rules.

The final orders of the court were that the appellant's case was struck out with liberty to replead. The court emphasised the importance of strict compliance with the procedural rules to ensure the efficient administration of justice and to avoid unnecessary delays. The appellant was given an opportunity to remedy the deficiencies and resubmit the case in accordance with the relevant rules.

Orders

Orders of the court

Appellant's case struck out with liberty to replead

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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