Hodder v Hodder [No 2]

[2009] WASCA 77

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HODDER -v- HODDER [No 2] [2009] WASCA 77

CORAM:   PULLIN JA

NEWNES JA

HEARD:   6 MARCH 2009

DELIVERED          :   6 MARCH 2009

FILE NO/S:   CACV 111 of 2008

BETWEEN:   JAMES LESLIE HODDER

Appellant

AND

IVY DORIS HODDER
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MARTINO DCJ

File No  :APP 59 of 2008

Catchwords:

Appeal - Grounds of appeal - No reasonable prospect of succeeding - Non­compliance with the rules of court - Appeal dismissed

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     Mr D C Rice

Solicitors:

Appellant:     No appearance

Respondent:     Griffiths Rice & Co

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

Hodder v Hodder [2008] WASCA 236

Samuels v Western Australia (2005) 30 WAR 473

1. PULLIN JA: This appeal has been listed to consider whether the appeal should be dismissed under r 43(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA). Rule 43(2)(g)(i) authorises the court to dismiss the appeal if none of the grounds has a reasonable prospect of succeeding. Rule 43(2)(g)(ii) authorises the court to dismiss the appeal if the appellant has not obeyed the rules. Rule 43 confers powers on a single judge which have been delegated by the Court of Appeal. If a single judge has those powers then a court consisting of more than one judge also has those powers.

2. The appeal is against the judgment of Judge Martino, who dismissed the appellant's appeal against an order for possession made against the appellant by a magistrate in the Magistrates Court on 11 September 2008.  The circumstances and details of the appeal before Judge Martino are set out in Hodder v Hodder [2008] WASCA 236. Those were the reasons given by this court for dismissing the appellant's application for a stay of judgment pending the hearing of this appeal.

3. The reasons reveal that the court hearing that application concluded that none of the appellant's grounds of appeal to this court had any reasonable prospect of succeeding.  The test for determining whether the grounds have a reasonable prospect of succeeding are set out in Samuels v Western Australia (2005) 30 WAR 473. The appellant has been given the chance to make further submissions. There have been no submissions from the appellant which produce any different result.

4. Some written submissions have been filed in which the appellant repeats his argument that the magistrate should have adjourned the hearing because of the appellant's attendance at the dentist.  The reasons expressed in Hodder v Hodder are the reasons for this court concluding that none of the grounds have any reasonable prospect of succeeding.  The appellant also failed to comply with r 32, which obliged the appellant to file the appellant's case within 35 days after the date on which the appeal notice is filed. 

5. The appeal notice was filed on 13 November 2008.  The appellant's case has not been filed.  The appellant did attempt to file a Form 7 document entitled 'Appellant's Case' but it did not have any of the attachments required by r 32(3).  As a result, the appeal should be dismissed.

6. NEWNES JA:  I agree.