Corica v Smith [No 2]

[2015] WASCA 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CORICA -v- SMITH [No 2] [2015] WASCA 117

CORAM:   NEWNES JA

MURPHY JA

HEARD:   2 JUNE 2015

DELIVERED          :   9 JUNE 2015

FILE NO/S:   CACV 114 of 2012

BETWEEN:   SALVATORE CORICA

First Appellant

MARILYN KAYE 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 - Review of decision refusing to suspend enforcement of judgment - Civil Judgments Enforcement Act 2004 (WA), s 15 - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     In person

Second Appellant          :     No appearance

First Respondent           :     Mr A M Prime

Second Respondent      :     Mr A M Prime

Solicitors:

First Appellant               :     In person

Second Appellant          :     No appearance

First Respondent           :     MDS Legal

Second Respondent      :     MDS Legal

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

Nil

1. JUDGMENT OF THE COURT:  On 2 June 2015, we dismissed the appellants' amended application, dated 22 May 2015, for review of a decision of Acting Master Gething refusing to suspend the enforcement of an order for costs made by the Court of Appeal.  These are our reasons.

2. The short history of the matter is as follows. An appeal by the appellants to this court arising out of a dispute with their neighbours over a fence was dismissed on the basis that none of the grounds of appeal had any reasonable prospect of succeeding. The appellants were ordered to pay the respondents' taxed costs of the appeal. A certificate for the taxed costs of $12,417.46 was issued on 25 February 2014. Pursuant to O 66 r 57 of the Rules of the Supreme Court 1971 (WA), the certificate is deemed to be a judgment of the court and recoverable accordingly.

3. Subsequently a property (seizure and sale) order was issued, pursuant to s 59 of the Civil Judgments Enforcement Act 2004 (WA), to enforce the costs judgment. The appellants applied for an order under s 15 of that Act suspending enforcement of the costs judgment, and for the property (seizure and sale) order to be set aside. In support of the application, the appellants filed an affidavit in which it was 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 property (seizure and sale) order issued pursuant to it is also unlawful.

4. 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.  He also found no grounds had been established upon which the property (seizure and sale) order 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.

5. The appellants have applied for review of that decision. In the course of what were, with respect, largely incomprehensible submissions put by the appellants there appeared to be some inchoate challenge to the jurisdiction of the acting master. In oral submissions, it appeared to be put on the basis that the acting master was not a judicial officer but in the nature of an employee of the court, a submission that is clearly wrong: s 7, Supreme Court Act 1935 (WA). In any event, any question of the acting master's jurisdiction can be put to one side for present purposes because we considered that the appropriate course was to treat this application as if it were a hearing de novo.

6. Having done so, it is evident that the application for suspension of the enforcement of the costs judgment and for the property (seizure and sale) order to be set aside is 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 have raised nothing that is capable of constituting 'special circumstances'.  Nor are any such circumstances apparent.  There is also nothing that would justify an order setting aside the property (seizure and sale) order.

7. As we have mentioned, the affidavit filed in support of the application before the acting master was concerned with misconceived arguments about the legitimacy and authority of this court and an alleged lack of legislative power of the State parliament.  Similar contentions were also advanced in support of the amended review application.  As the acting master observed, those arguments have been repeatedly rejected by this court.  They are entirely without merit.

8. The affidavit in support of the application for review, to the extent that sense can be made of it, appears to seek to raise a number of matters ostensibly directed to the merits of the decision of this court on the substantive appeal and to complaints that the application for the property (seizure and sale) order was not served on the appellants.  In relation to the former, the matters raised in the affidavit are a collateral attack on the costs order and cannot be countenanced.  They are irrelevant to its enforcement.  In relation to the latter, the complaint is misconceived.  There was no obligation on the respondents to serve the application for the property (seizure and sale) order on the appellants:  Civil Judgments Enforcement Act, s 19(3). It was also contended that no order as to the costs of the appeal had been made because no such order was contained in the reasons for judgment. That is also misconceived. In accordance with the normal practice, the order was made orally when judgment was delivered on 27 September 2013. It was settled on 1 October 2013.

9. It follows that the appellants have failed to establish any grounds for the suspension of enforcement of the costs judgment or the setting aside of the property (seizure and sale) order.

10. It was for those reasons we dismissed the appellants' application.