Glew v Frank Jasper Pty Ltd - [2012] WASCA 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GLEW -v- FRANK JASPER PTY LTD [2012] WASCA 93

CORAM: NEWNES JA
MURPHY JA

HEARD: 23 APRIL 2012

DELIVERED : 23 APRIL 2012

PUBLISHED : 30 APRIL 2012

FILE NO/S: CACV 15 of 2012

BETWEEN: WAYNE KENNETH GLEW
Appellant
AND
FRANK JASPER PTY LTD
First Respondent
GLEW TECHNOLOGIES PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :FRANK JASPER PTY LTD -v- GLEW [No 3] [2012] WASC 24
File No  :CIV 2179 of 2007

Catchwords:

Practice and procedure - Whether grounds of appeal have reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Whether reasonable apprehension of bias - Trial judge briefed as counsel in unrelated action 10 years earlier by solicitors for first respondent - Ground without merit - Other grounds of appeal repeat grounds dismissed in earlier cases - Appeal dismissed

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent       :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     Solomon Brothers
Second Respondent       :     No appearance

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

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37
Frank Jasper Pty Ltd v Glew [No 2] [2010] WASC 24
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v City of Greater Geraldton [2012] WASCA 94
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Shire of Greenough [2006] WASCA 260
Glew v The Governor of Western Australia [2009] WASCA 123
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

JUDGMENT OF THE COURT: The appellant has appealed against a decision of Martin CJ of 25 January 2012 in which his Honour awarded damages to the first respondent in the sum of $1,541,982.53 plus interest of $521,527.45, a total amount of $2,063,509.98.
On 22 March 2012, the appellant filed an interim application seeking an order that the decision of the primary judge be 'set aside' until the hearing of the appeal.
Subsequently, the Court of Appeal Registrar issued a notice to the parties to attend for consideration of that application, and also to consider whether any of the grounds of appeal should be struck out because they do not have a reasonable prospect of success (Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)) or whether the appeal should be dismissed because none of the grounds of appeal has a reasonable prospect of success (r 43(2)(g)).
On 23 April 2012, we dismissed the appeal, with reasons to be delivered later. The following are our reasons.

Background

The decision of the primary judge followed an earlier decision of his Honour…

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.

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Details

Case: [2012] WASCA 93
Decision Date: 30 APRIL 2012

CaseChat Overview and Summary

Glew, the appellant, appealed against a decision of Martin CJ, handed down on 25 January 2012, in which his Honour awarded damages to Frank Jasper Pty Ltd, the first respondent, in the sum of $1,541,982.53 plus interest of $521,527.45, a total amount of $2,063,509.98. Glew filed an interim application seeking an order that the decision of the primary judge be 'set aside' until the hearing of the appeal. The Court of Appeal Registrar issued a notice to the parties to attend for consideration of that application, and also to consider whether any of the grounds of appeal should be struck out because they do not have a reasonable prospect of success (Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)) or whether the appeal should be dismissed because none of the grounds of appeal has a reasonable prospect of success (r 43(2)(g)). The Court of Appeal dismissed the appeal on 23 April 2012.

The grounds of appeal included a challenge to the trial judge's authority to determine the proceedings on the basis that he had a reasonable apprehension of bias as he had been briefed as counsel in an unrelated action 10 years earlier by solicitors for the first respondent. The other grounds of appeal repeated arguments dismissed in earlier cases. The court found that the grounds of appeal did not have a reasonable prospect of succeeding. The court found that the appellant's challenge to the trial judge's authority to determine the proceedings on the basis of apprehended bias was without merit as the trial judge had not acted as counsel for the first respondent in any case related to the proceedings. The court found that the other grounds of appeal repeated arguments dismissed in earlier cases and accordingly had no reasonable prospect of succeeding.

The Court of Appeal found that the appeal had no reasonable prospect of succeeding and accordingly dismissed the appeal. The Court of Appeal found that the grounds of appeal were without merit and did not have a reasonable prospect of succeeding. The Court of Appeal found that the trial judge's authority to determine the proceedings was not challenged on any valid basis and that the appellant's arguments were reiterations of arguments dismissed in earlier cases. The Court of Appeal found that the appeal should be dismissed because none of the grounds of appeal had a reasonable prospect of success.

The Court of Appeal dismissed the appeal and made no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant has appealed against a decision of Martin CJ of 25 January 2012 in which his Honour awarded damages to the first respondent in the sum of $1,541,982.53 plus interest of $521,527.45, a total amount of $2,063,509.98. On 22 March 2012, the appellant filed an interim application seeking an order that the decision of the primary judge be 'set aside' until the hearing of the appeal. Subsequently, the Court of Appeal Registrar issued a notice to the parties to attend for consideration of that application, and also to consider whether any of the grounds of appeal should be struck out because they do not have a reasonable prospect of success (Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)) or whether the appeal should be dismissed because none of the grounds of appeal has a reasonable prospect of success (r 43(2)(g)). On 23 April 2012, we dismissed the appeal, with reasons to be delivered later. The following are our reasons. The decision of the primary judge followed an earlier decision of his Honour in which he found that the appellant and Glew Technologies Pty Ltd had engaged in misleading and deceptive conduct: Frank Jasper Pty Ltd v Glew [No 2] [2010] WASC 24 (the liability decision). An appeal by the appellant against the liability decision was dismissed: Glew v Frank Jasper Pty Ltd [2010] WASCA 87. Following the liability decision, the primary judge gave directions to facilitate the trial of the remaining issues in the action, including directions for the exchange of expert and other evidence. The appellant did not indicate that he intended to lead any evidence. The primary judge had previously ruled that the appellant was not entitled to act for the second respondent, Glew Technologies, which had to be represented by a legal practitioner. Glew Technologies did not engage legal representation and accordingly was precluded from active participation as a defendant in the action. (We would observe in passing that it is not apparent why Glew Technologies is a respondent, rather than an appellant, in this appeal.) Prior to the second hearing, the first respondent filed and served affidavits, expert reports and witness statements as required by his Honour's directions. The following account of the appellant's approach is taken from his Honour's reasons for judgment:Shortly prior to the hearing, Mr Glew filed written submissions which dealt only with the question of my authority to determine the proceedings, and which did not deal at all with any of the substantive issues in the case. When the matter came on for hearing, Mr Glew challenged my authority to determine the claims against him by reference to those written submissions. I advised Mr Glew that I found those submissions to be incomprehensible, referring, as they did, to a schedule to the Australian Constitution which does not exist, and failing to identify any coherent basis upon which it was asserted that my appointment as a judge of the court was invalid. I advised Mr Glew that at the time of my appointment I had taken the oaths applicable to the various judicial offices which I hold in accordance with the requirements of the Supreme Court Act 1935 (WA). I invited Mr Glew to refer me to any provision of the Australian Constitution which could support the proposition that my appointment was invalid. He was unable to identify any such provision. I therefore indicated to Mr Glew that I considered my appointment to be valid, and that I had authority to determine the case against him, and would proceed to exercise that authority.At that point Mr Glew indicated that he proposed to withdraw. I advised him clearly and unequivocally that if he did withdraw, and took no further part in the proceedings, they were likely to continue in his absence, and that judgment may be entered against him (ts 502). Mr Glew nevertheless proceeded to withdraw, and took no further part in the hearing [4] ‑ [5].

Ratio Decidendi

Legal Principle Established

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