Bride v Shire of Katanning

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRIDE -v- SHIRE OF KATANNING [2016] WASCA 106

CORAM: NEWNES JA
MITCHELL J

HEARD: 23 JUNE 2016

DELIVERED : 23 JUNE 2016

FILE NO/S: CACV 28 of 2016

BETWEEN: EDWARD JAMES BRIDE
WENDY MARGARET BRIDE
Appellants
AND
SHIRE OF KATANNING
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TOTTLE J
Citation  :SHIRE OF KATANNING -v- BRIDE [2016] WASC 118
File No  :CIV 2401 of 2015

Catchwords:

Practice and procedure - Application for leave to appeal from interlocutory order - Refusal of leave to issue subpoenas - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellants: In person
Respondent: No appearance

Solicitors:

Appellants: In person
Respondent: No appearance

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

Shire of Katanning v Bride [2016] WASC 118
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

REASONS OF THE COURT: The appellants face an application in the Supreme Court under the Vexatious Proceedings Restriction Act 2002 (WA). A case management direction required that no subpoenas were to issue in the matter without the leave of the court. The appellants sought leave to issue subpoenas to an officer and legal advisers of the respondent. On 10 March 2016, the primary judge refused to grant the appellants leave to issue those subpoenas.
The primary judge published reasons for that decision, which summarise the relevant background: see Shire of Katanning v Bride [2016] WASC 118.
The appellants seek leave to appeal against that decision.
The appellants also seek an extension of time within which to apply for leave to appeal. The delay is relatively modest, and mostly results from the difficulties which the appellants, who do not have legal representation, experienced in preparing a formal appeal notice. We would grant an extension of time in which to seek leave to appeal.
The primary judge's decision was interlocutory, so leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA). Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 54 ‑ 57.
We have considered the grounds of appeal and written submissions advanced by the appellants in support of their application for leave to appeal. In our view, nothing in those grounds of appeal or written submissions, or the oral submissions advanced today, provide any reason for doubting the correctness of the primary judge's decision. To the contrary, in our view the primary judge's decision was plainly correct for the reasons he gave. As the correctness of that decision is not attended by sufficient doubt to justify the grant of leave, and none of the proposed grounds are reasonably arguable, leave to appeal is refused.

CaseChat Overview and Summary

Bride brought an action against the Shire of Katanning, seeking leave to issue subpoenas as part of the discovery process in an ongoing civil dispute. The application was made in the Supreme Court of Western Australia, which declined the application and denied leave to appeal this interlocutory order. The appellants sought to appeal the refusal of leave to issue subpoenas, arguing that the primary judge had erred in denying their application.

The primary legal issue was whether the Supreme Court's decision to refuse leave to issue subpoenas was correct. The appellants argued that the refusal of leave to issue subpoenas was a substantive error that warranted an appeal. They further contended that the refusal of leave to appeal the interlocutory order was itself an error that should be reviewed. The court needed to determine whether the denial of leave to appeal was plainly wrong or attended by sufficient doubt to justify granting leave.

The Court of Appeal found that the primary judge's decision was correct and not attended by sufficient doubt to warrant an appeal. The court examined the grounds of appeal and the submissions made by the appellants, concluding that there was no reasonable arguable basis for doubting the correctness of the primary judge's decision. As a result, the Court of Appeal upheld the refusal of leave to appeal the interlocutory order denying the issuance of subpoenas. The Court of Appeal found that the primary judge's decision was correct and that the refusal of leave to appeal was justified.

Legal Principle Established

The primary judge's decision was interlocutory, so leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA). Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 54 ‑ 57. We have considered the grounds of appeal and written submissions advanced by the appellants in support of their application for leave to appeal. In our view, nothing in those grounds of appeal or written submissions, or the oral submissions advanced today, provide any reason for doubting the correctness of the primary judge's decision. To the contrary, in our view the primary judge's decision was plainly correct for the reasons he gave. As the correctness of that decision is not attended by sufficient doubt to justify the grant of leave, and none of the proposed grounds are reasonably arguable, leave to appeal is refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established