Appeal - Whether grounds of appeal have reasonable prospect of succeeding - Rule 43(2)(g)(i) - Necessity for grounds of appeal to comply with rules - Allowances to be made where selfrepresented litigant - Turns on own facts
JUDGMENT OF THE COURT: This appeal has been brought on by a notice issued by the Court of Appeal Registrar requiring the first appellant (Mr Glew) to show cause why the appeal should not be dismissed under r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), on the ground that none of the grounds of appeal has a reasonable prospect of succeeding.
The appellants appeal against a decision of Martin CJ of 15 February 2010, in which his Honour found that the appellants had engaged in misleading or deceptive conduct in connection with certain inventions of Mr Glew. His Honour also dismissed a counterclaim by the second appellant (of which Mr Glew is the sole shareholder and director) seeking a declaration that a licence agreement relating to the inventions had been terminated: Frank Jasper Pty Ltd v Glew [No 2][2010] WASC 24. His Honour had earlier ruled that, the solicitors for the second appellant having ceased to act, the second appellant was unable…
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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AGLC
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Case
[2010] WASCA 87
Decision Date
CaseChat Overview and Summary
In this case, the appellants, Glew and Frank Jasper Pty Ltd, appeal against a decision made by Martin CJ in the Supreme Court of Western Australia on 15 February 2010. The appeal concerns a finding of misleading or deceptive conduct in relation to certain inventions and a dismissed counterclaim regarding a licence agreement. The appellants challenge the primary judge's determination that they engaged in misleading or deceptive conduct and the dismissal of their counterclaim.
The primary legal issue before the court was whether any of the grounds of appeal had a reasonable prospect of success, particularly in light of the defects in the appellants' case. The appeal notice required the appellants to demonstrate why the appeal should not be dismissed under Rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), which pertains to the dismissal of appeals without merit. Additionally, the court had to consider whether allowances should be made for the appellants due to Mr Glew's self-representation, given the strict procedural rules governing legal representation in civil proceedings.
The court found that the appellants' case was defective and did not comply with the procedural requirements, such as the absence of separate submissions for each ground of appeal and a draft chronology. Moreover, the irregularity in filing the appeal notice on behalf of the second appellant by Mr Glew, who is not a solicitor, was highlighted as a further procedural flaw. Despite these procedural shortcomings, the court considered the possibility of any ground of appeal having a reasonable prospect of success. However, given the substantive findings of the primary judge and the appellants' failure to address the specific grounds of appeal, the court concluded that none of the grounds had a reasonable prospect of success.
The court ultimately dismissed the appeal and affirmed the primary judge's decision. The dismissal was based on the procedural deficiencies in the appellants' case and the lack of a reasonable prospect of success for any of the grounds of appeal. Consequently, the findings of misleading or deceptive conduct and the dismissal of the counterclaim remained upheld.
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: This appeal has been brought on by a notice issued by the Court of Appeal Registrar requiring the first appellant (Mr Glew) to show cause why the appeal should not be dismissed under r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), on the ground that none of the grounds of appeal has a reasonable prospect of succeeding. The appellants appeal against a decision of Martin CJ of 15 February 2010, in which his Honour found that the appellants had engaged in misleading or deceptive conduct in connection with certain inventions of Mr Glew. His Honour also dismissed a counterclaim by the second appellant (of which Mr Glew is the sole shareholder and director) seeking a declaration that a licence agreement relating to the inventions had been terminated: Frank Jasper Pty Ltd v Glew [No 2] [2010] WASC 24. His Honour had earlier ruled that, the solicitors for the second appellant having ceased to act, the second appellant was unable to pursue the counterclaim without legal representation. No evidence was led in support of the counterclaim. While the primary judge found that the appellants had in certain respects engaged in misleading and deceptive conduct in respect of the inventions, for reasons his Honour gave he considered it was neither necessary nor appropriate to grant any relief to the respondent at that stage. His Honour stood over the issue of relief to a further hearing. The appeal notice was filed by the appellants on 5 March 2010 and the respondent filed a notice of intention on 12 March 2010. The appellants' case was filed on 19 March 2010. The appellants' case is plainly defective. It does not, contrary to r 32(5) of the Court of Appeal Rules, contain submissions in respect of each ground of appeal. The document in the appellants' case entitled 'submissions' contains simply an assertion that the primary judge, the respondent and its solicitors have breached certain laws, which are then listed. In addition, the appellants' case does not contain a draft chronology that satisfies the requirements of r 32(8). We should also observe that the appeal notice so far as it relates to the second appellant is irregular in that it has been filed on behalf of the second appellant by Mr Glew, who is not a solicitor. A corporation cannot commence or carry on any civil proceedings in the court except by a solicitor: O 4 r 3(2) of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules). The application of that provision to an appeal cannot have escaped Mr Glew's attention. The same point arose in Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289 [15], where the court pointed out that the appeal in that case was irregular because it had been commenced and carried on by Mr Glew on behalf of the company, contrary to O 4 r 3(2). We turn then to the issue raised by the registrar's notice; that is, whether any of the grounds of appeal have any prospects of success.