Corica v Smith
[2015] WASCA 209
•21 OCTOBER 2015
CORICA -v- SMITH [2015] WASCA 209
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 209 | |
| THE COURT OF APPEAL (WA) | 21/10/2015 | ||
| Case No: | CACV:72/2015 | 14 OCTOBER 2015 | |
| Coram: | NEWNES JA MURPHY JA | 14/10/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce additional evidence dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARILYN KAYE CORICA SALVATORE CORICA ELAINE ANN SMITH ALAN GEORGE SMITH |
Catchwords: | Practice and procedure Whether grounds of appeal have any reasonable prospect of succeeding Application to adduce additional evidence on appeal Appeal dismissed Turns on own facts |
Legislation: | Nil |
Case References: | Ho v Loneragan [2013] WASCA 20 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CORICA -v- SMITH [2015] WASCA 209 CORAM : NEWNES JA
- MURPHY JA
- First Appellant
SALVATORE CORICA
Second Appellant
AND
ELAINE ANN SMITH
First Respondent
ALAN GEORGE SMITH
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ACTING MASTER GETHING
Citation : CORICA -v- SMITH [No 2] [2015] WASC 155
File No : CIV 1824 of 2012, CACV 114 of 2012
Catchwords:
Practice and procedure - Whether grounds of appeal have any reasonable prospect of succeeding - Application to adduce additional evidence on appeal - Appeal dismissed - Turns on own facts
Legislation:
Nil
Result:
Application to adduce additional evidence dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
First Respondent : Mr A M Prime
Second Respondent : Mr A M Prime
Solicitors:
First Appellant : In person
Second Appellant : In person
First Respondent : MDS Legal
Second Respondent : MDS Legal
Case(s) referred to in judgment(s):
Ho v Loneragan [2013] WASCA 20
1 JUDGMENT OF THE COURT: On 14 October 2015, this appeal came before the court on a registrar's notice to attend to consider:
1. whether the appeal should be dismissed on the ground that none of the grounds of appeal has any reasonable prospect of succeeding;
2. whether the appeal should be dismissed on the ground that the appellants had failed to file an appellant's case that complied with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA); and
3. an application by the appellants, among other things, to adduce additional evidence on the appeal.
2 We dismissed the application and the appeal, and said we would provide reasons for our decision. These are the reasons.
3 The proceedings between the appellants and the respondents arose out of a dispute about the fencing of the common boundary to their respective properties. That dispute found its way to the Midland Magistrates Court. On 11 May 2012, the appellants filed in the general division of the Supreme Court an application for review under s 36 of the Magistrates Court Act 2004 (WA). On 26 June 2012, McKechnie J ordered that the application be treated as an application by the appellants to transfer the proceedings from the Midland Magistrates Court to the Supreme Court. On 12 September 2012, that application was dismissed by the master, who found that it was wholly misconceived. The master ordered the appellants to pay the respondents' costs on a full indemnity basis. These costs were taxed at $4,767.27 on 27 February 2014 and a certificate of taxation issued the next day (the cost judgment).
4 Subsequently the respondents obtained a property (seizure and sale) order (PSSO), pursuant to s 59 of the Civil Judgments Enforcement Act 2004 (WA), to enforce the costs judgment. The appellants then applied under s 15 of that Act for an order suspending enforcement of the costs judgment and for the PSSO to be set aside. In affidavits filed in support of the application, the appellants asserted, in substance, that the Constitution of the State of Western Australia is unlawful and the State has no power to enact legislation. Accordingly, it was asserted, the Civil Judgments Enforcement Act is unlawful and the PSSO issued pursuant to it is also unlawful. It was also asserted, among other things, that the courts of the State are 'gender neutral entity's [sic] of no substance and do not exist in reality or under common law'.
5 The application was listed before the acting master who dismissed it. The acting master found that no 'special circumstances', within the meaning of s 15 of the Civil Judgments Enforcement Act, had been made out for suspending the enforcement of the judgment. He also found no grounds had been established upon which the PSSO might be set aside. The acting master rejected the appellants' argument about the legislative power of the State, pointing out that arguments to the same effect had been rejected by this court on numerous occasions.
6 The appellants have appealed from that decision. The grounds of appeal are very difficult to understand. The substance of them appears to be, first, that the master did not have jurisdiction to deal with the appellants' application to transfer the proceedings in the Midland Magistrates Court to the Supreme Court and, secondly, that he was biased and denied the appellants procedural fairness. The master is alleged to have lacked jurisdiction because, it is said, he has no 'extra-judicial powers' but can act only at the direction of a judge. The basis of the allegations that the master was biased and that the appellants were denied procedural fairness is impossible to discern.
7 Based on the contention that the master had no jurisdiction to determine the application, the appellants argued that the decision of the master, including the order as to the cost of the application, was void and the acting master could not make an order which had the effect of permitting the enforcement of the master's void order.
8 That argument falls at the first hurdle. The contention that the master had no jurisdiction to determine the appellants' application to transfer the proceedings from the Midland Magistrates Court is clearly wrong: see s 7, Supreme Court Act 1935 (WA). For completeness, however, we should also mention that, in any event, it is well-established that a judicial order of a superior court, even if made in excess of jurisdiction, is at most voidable and has effect unless and until set aside: see Ho v Loneragan [2013] WASCA 20 [32] and the cases cited there. There has been no application to set aside the master's order and not only is the time for any challenge to that decision long gone, but for the reason we have mentioned any such application on the grounds relied upon by the appellants would be doomed to failure. We should also note in passing that there is nothing which might suggest any foundation for the appellants' allegations that the master was biased or that the appellants were denied procedural fairness.
9 Turning to the decision of the acting master, that decision was plainly correct. The application for suspension of the enforcement of the costs judgment and for the PSSO to be set aside was without merit. Under s 15(3) of the Civil Judgments Enforcement Act, the court may only make an order suspending the enforcement of a judgment if there are 'special circumstances that justify doing so'. The appellants put nothing before the acting master that was capable of constituting 'special circumstances'. Nor are any such circumstances apparent now. There was (and is) also nothing that would justify an order setting aside the PSSO.
10 As we have mentioned, the affidavits filed in support of the application before the acting master were concerned with misguided arguments about the legitimacy and authority of this court and an alleged lack of legislative power of the State parliament. As the acting master observed, those arguments have been repeatedly rejected by this court. They are, to put them at their highest, entirely without merit.
11 The appellants also applied, by an amended interim application dated 5 October 2015, for orders:
1. that the appellants have leave to adduce additional evidence on the appeal;
2. for the 'expurgation' of all of the first respondent's (sic, second respondent's) affidavits both before the master on the original application and the acting master on the application in respect of the PSSO, on the ground that those affidavits contain 'disinformation that had … misled the court below'; and
3. giving clear directions how the appellants' case is to be amended, if the court continues to fail to appreciate that the appellants' case does comply with the rules and that the grounds of appeal do have reasonable prospects of succeeding.
12 The supporting affidavit is again all but incomprehensible. No point would be served by attempting to canvass its contents. Some of it appears to relate to the decision of the master on the original application and is therefore irrelevant. To the limited extent it is possible to discern the additional evidence upon which the appellants seek to rely in respect of the decision of the acting master, there is nothing that could conceivably have made any difference to the outcome of those proceedings. We should also say that there is nothing in the affidavit that might suggest there is any substance in the appellants' allegations about the second respondent's affidavits.
13 The third part of the application proceeds upon a misconception as to the role of the court and as to the merits of the appellants' case on appeal. Nothing that has been put before us suggests the appellants have, or could have, any reasonable prospects of success on the appeal. The application was misconceived.
14 It was for those reasons that we dismissed the application and the appeal.
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