GXB v Tyson [No 2]

[2025] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   GXB -v- TYSON [No 2] [2025] WASCA 115

CORAM:   VAUGHAN JA

HALL JA

HEARD:   25 JULY 2025

DELIVERED          :   25 JULY 2025

PUBLISHED           :   30 JULY 2025

FILE NO/S:   CACV 52 of 2025

BETWEEN:   GXB

Appellant

AND

THE HONOURABLE JUSTICE CIARA AISLING TYSON

First Respondent

BFS

Second Respondent

CJA

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MITCHELL JA

Citation: GXB v HONOURABLE JUSTICE CIARA AISLING TYSON [2025] WASCA 91

File Number            :   CACV 49 of 2025

Catchwords:

Appeal - Practice and procedure - Application to adjourn hearing of review application - Adequacy of medical certificate - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant	:	No Appearance
First Respondent	:	No Appearance
Second Respondent	:	In Person
Third Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	State Solicitor's Office
Second Respondent	:	In Person
Third Respondent	:	In Person

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

Nil

REASONS OF THE COURT:

(These reasons were delivered orally.  They have been edited from the transcript to correct matters of grammar and infelicity of expression.)

1. The appellant applies by an application in appeal filed 24 July 2025 to vacate the hearing of the appellant's application filed 19 June 2025 for review of a decision of a single judge of appeal.  The application to vacate is supported by the appellant's affidavit sworn 24 July 2025.  That affidavit simply attaches a medical certificate dated 24 July 2025 that states:

   [The appellant] is currently suffering multiple medical conditions including complex Post Traumatic Stress Disorder.  She is under extreme pressure currently and an excessive workload and currently she in unable to do any work on drafting of documents or to attend the hearing before the Full Court on 25th July.  I recommend she have a complete break from this work and attending court for 1 month.

2. In determining whether to adjourn a hearing the court evaluates the interests of justice informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

3. In that respect we are satisfied that what has been provided in support of the appellant's case for an adjournment is too little and too late.  The appellant has been aware of the hearing since 24 June 2025 when the Registrar's Notice to Attend was issued.  The medical certificate is perfunctory and is not the subject of affidavit evidence by the medical practitioner who has signed the certificate.  The certificate is addressed 'To Whom it May Concern' rather than the court.  It is not clear that the medical practitioner is aware that the court is being asked to rely on the medical certificate.  If the medical practitioner was aware that the certificate was intended to be relied on by the court it might have been expected that more would have been disclosed by the medical practitioner.  Nothing is said about whether there is a pre‑existing doctor/patient relationship between the medical practitioner and the appellant; whether the medical practitioner has consulted in person with the appellant and, if so, when and for what time; what, if any, symptoms the appellant is displaying; the extent to which the medical certificate is based on what the appellant has told the medical practitioner rather than the medical practitioner's own observations and conclusions; and whether the medical practitioner has been informed of the nature of the hearing scheduled for today.

4. In those circumstances, and in circumstances where the basis for the medical practitioner's certificate has not been disclosed so that the opinion expressed is capable of being evaluated, we place no weight on the medical certificate.

5. The hearing before the court is concerned with a review of a decision of a single judge of appeal.  Accordingly, it is not an occasion where significant preparation is required.  The appellant has already presented her case on the underlying issues before the single judge of appeal.  The appellant has prepared a substantial written document outlining suggested errors by the single judge of appeal.  Ultimately, however, the application for review condenses down into a single issue: was the single judge of appeal in error in concluding that the appeal did not have reasonable prospects of success?  We are comfortably satisfied that the appellant would have been in a position to deal with this issue had she chosen to attend before the court this afternoon ‑ and, in any event, the appellant has dealt with the matter in writing.

6. The appellant has not made out that it is in the interests of justice to adjourn the hearing.  That is all the more so when the adjournment would waste scarce public resources of the court.  The appellant's application in appeal filed 24 July 2025 to vacate the hearing of the appellant's application filed 19 June 2025 is dismissed.  We order accordingly.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SD

Associate to the Hon Justice Vaughan

30 JULY 2025