BELL -v- CRIBB [2013] WASCA 159

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 159
Court:	THE COURT OF APPEAL (WA)	Published:	05/07/2013
Case No:	CACV:20/2013	Heard:	21 JUNE 2013
Coram:	PULLIN JA MURPHY JA	Delivered:	21/06/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	CARL WILLIAM BELL NEIL RAYMOND CRIBB COSTANOZA PTY LTD (In Liquidation)
Catchwords:	Bankruptcy Appeal incompetent Failure to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA)
Legislation:	Bankruptcy Act 1966 (Cth), s 58, s 60(2), s 134(1) Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(ii)
Case References:	Bell v Cribb [2013] WASC 32 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Samootin v Shea [2010] NSWCA 371

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BELL -v- CRIBB [2013] WASCA 159 CORAM : PULLIN JA

MURPHY JA

HEARD : 21 JUNE 2013 DELIVERED : 21 JUNE 2013 PUBLISHED : 5 JULY 2013 FILE NO/S : CACV 20 of 2013 BETWEEN : CARL WILLIAM BELL

Appellant

AND

NEIL RAYMOND CRIBB

First Respondent

COSTANOZA PTY LTD (In Liquidation)

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : BEECH J

Citation : BELL -v- CRIBB [2013] WASC 32

File No : CIV 1697 of 2012

(Page 2)

Catchwords:

Bankruptcy - Appeal incompetent - Failure to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA)

Legislation:

Bankruptcy Act 1966 (Cth), s 58, s 60(2), s 134(1)

Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

First Respondent : Ms F F Xue

Second Respondent : Ms F F Xue

Solicitors:

Appellant : In person

First Respondent : Gadens Lawyers

Second Respondent : Gadens Lawyers

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

Bell v Cribb [2013] WASC 32
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Samootin v Shea [2010] NSWCA 371

(Page 3)

1 REASONS OF THE COURT: On 21 June 2013, the court made orders dismissing the appeal with reasons to follow. These are the reasons.

2 This appeal came before the court as a result of a registrar's notice to attend, which stated that the purpose of the hearing was:

For the appellant to show cause why the appeal should not be dismissed on one or more of the following grounds:

• that it has not been properly commenced, the rights of the appellant having previously vested in the Official Trustee under the Bankruptcy Act;

…

• that the appellant has failed to comply with the

Supreme Court (Court of Appeal) Rules 2005

, and in particular has failed to file the appellant's case as required by rule 32.

3 The appeal was against the orders made by Beech J in CIV 1697 of 2012 on 8 February 2013; Bell v Cribb [2013] WASC 32. Beech J explained that, in the…

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.

Continue reading Bell v Cribb

Details

AGLC: BELL -v- CRIBB [2013] WASCA 159
Case: [2013] WASCA 159
Decision Date: 5 JULY 2013

CaseChat Overview and Summary

Bell v Cribb was a case in which the appellant sought to appeal against a bankruptcy order. The appellant, Bell, contended that there were errors in the lower court's decision, which had ordered that he be declared bankrupt. The respondent, Cribb, opposed the appeal, arguing that it was incompetent due to non-compliance with the relevant court rules. The case was heard in the Supreme Court of Western Australia, which was responsible for deciding whether the appeal was competent and, if so, whether it should be dismissed or allowed.

The primary legal issue for the court was whether the appeal was competent given that the appellant had failed to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). Specifically, the court had to determine whether the failure to adhere to these rules rendered the appeal invalid. The court also needed to consider whether any discretion existed to permit the appeal despite the non-compliance, and if so, whether the appeal should be allowed on its merits.

The court held that the appeal was incompetent due to the appellant's failure to comply with the relevant court rules. It found that strict adherence to these rules was necessary to maintain the integrity of the appellate process. The court emphasised that the rules were in place to ensure that appeals were properly managed and that non-compliance could not be overlooked. The appellant's arguments regarding the merits of the bankruptcy order were not considered since the appeal was dismissed on the basis of procedural non-compliance. Consequently, the appeal was dismissed, and no further orders were made.

Orders

Orders of the court

Appeal dismissed

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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