CUIJPERS -v- SANDER [2008] WASCA 159

Link to Appeal :

[2009] WASCA 84

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 159
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:74/2008	Heard:	22 JULY 2008
Coram:	MILLER JA	Delivered:	29/07/08
No of pages:	10	Judgment Part:	1 of 1
Result:	Grounds of appeal struck out
Category:	B
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Parties:	FREDERIK JOHAN CUIJPERS PAUL DOUGLAS SANDER
Catchwords:	Appeal Appeal from decision of single judge Whether grounds of appeal have any reasonable prospect of success
Legislation:	Freedom of Information Act 1992 (WA) Restraining Orders Act 1997 (WA), s 61(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)
Case References:	Krakouer v The State [2006] WASCA 81; (2006) 161 A Crim R 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CUIJPERS -v- SANDER [2008] WASCA 159 CORAM : MILLER JA HEARD : 22 JULY 2008 DELIVERED : 29 JULY 2008 FILE NO/S : CACR 74 of 2008 BETWEEN : FREDERIK JOHAN CUIJPERS

Appellant

AND

PAUL DOUGLAS SANDER

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : McKECHNIE J

Citation : CUIJPERS -v- THOMPSON [2008] WASC 95

File No : SJA 1007 of 2008, SJA 1008 of 2008

Catchwords:

Appeal - Appeal from decision of single judge - Whether grounds of appeal have any reasonable prospect of success

(Page 2)

Legislation:

Freedom of Information Act 1992 (WA)

Restraining Orders Act 1997 (WA), s 61(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)

Result:

Grounds of appeal struck out

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr C S Bydder

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

Krakouer v The State [2006] WASCA 81; (2006) 161 A Crim R 347

(Page 3)

1 MILLER JA: The appellant appeals from a decision of McKechnie J delivered on 23 April 2008 where his Honour dismissed an application for leave to appeal in SJA 1007 of 2008. The application related to convictions for three breaches of a misconduct restraining order. The convictions were recorded on 18 August 2005, but notice of appeal was not filed until 6 February 2008.

2 There was also an application in SJA 1008 of 2008, where the appellant sought leave to appeal against the making of a restraining order on the application of one JCK. That restraining order was made on 20 May 2005. McKechnie J dismissed that application and no issue is raised by the appellant about the dismissal.

3 The application for leave to appeal in SJA 1007 of 2008 was filed nearly 2 1/2 years out of time. McKechnie J correctly held that the appellant had the obligation to satisfy him that there were reasons which explained or excused the delay, or alternatively showed that there would be a miscarriage of justice unless the extension of time was granted (Krakouer v…

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 Cuijpers v Sander

Details

AGLC: Cuijpers v Sander [2008] WASCA 159
Case: [2008] WASCA 159
Decision Date: 29 JULY 2008

CaseChat Overview and Summary

In the case of Cuijpers v Sander, the appeal arose from a decision made by a single judge, where the appellant sought to challenge the outcome. The central dispute involved the interpretation and application of certain legal principles in the context of a dispute between the parties. The Court of Appeal was tasked with determining whether the grounds of appeal presented by the appellant had any reasonable prospect of success.

The primary legal issue before the Court of Appeal was to assess the merits of the grounds of appeal. This involved evaluating whether there were substantial grounds for believing that the decision of the single judge was incorrect and whether the appeal had a reasonable prospect of success. The Court needed to consider whether the appellant had identified any significant legal errors or misapplications of the law by the single judge.

The Court of Appeal found that the grounds of appeal did not present a reasonable prospect of success. The reasoning of the Court indicated that the grounds failed to demonstrate a substantial error of law by the single judge. Consequently, the appeal was dismissed, and the grounds of appeal were struck out. The Court held that the appellant had not successfully established the necessary threshold to warrant a full hearing of the appeal.

No additional orders were made beyond striking out the grounds of appeal. The Court's decision was based on the lack of a reasonable prospect of success in the appeal, and no further action was required in relation to the substantive issues raised in the appeal.

Orders

Orders of the court

Grounds of appeal struck out

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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