Ives v Heath

[2011] WASCA 28

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   IVES -v- HEATH [2011] WASCA 28

CORAM:   PULLIN JA

MURPHY JA

HEARD:   28 JANUARY 2011

DELIVERED          :   28 JANUARY 2011

FILE NO/S:   CACV 100 of 2010

BETWEEN:   BENJAMIN IVES

Appellant

AND

STEVEN HEATH
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MURRAY J

Citation  :IVES -v- HEATH [2010] WASC 256

File No  :CIV 2315 of 2010

Catchwords:

Appeal - Practice and procedure - Appeal dismissed for non­compliance with rules - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     No appearance

Respondent:     No appearance

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

Ives v Heath [2010] WASC 256

1. PULLIN JA: This appeal has been listed for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) for failure to comply with those rules. The background is that the Chief Magistrate of the Magistrates Court issued a warrant for the appellant's arrest on 17 May 2010 due to the failure of the appellant to answer bail. He had been on bail relating to stalking charges in the circumstances set out in Murray J's reasons in Ives v Heath [2010] WASC 256.

2. Pursuant to s 36 of the Magistrates Court Act 2004 (WA), the appellant then sought to review the order of the Chief Magistrate and Murray J dismissed the application for reasons he set out in the abovementioned reasons. In short, Murray J held that the appellant had not demonstrated an arguable case.

3. The appellant then filed an appeal notice in this court on 19 September 2010. Pursuant to the Court of Appeal Rules, the appellant's case was due to be filed by 25 October 2010. By letter dated 27 October 2010, a court support officer of the Court of Appeal wrote to the appellant advising of the requirement that the case be filed and served by 25 October 2010 and informing the appellant that the case should be filed and served without delay. Nothing happened in response and on 17 December 2010 the registrar issued a notice to attend, requiring the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) because of the failure to comply with the rules which required the filing of the appellant's case: see r 32(1) and (2). The appellant has not shown cause and as a result the appeal should be dismissed.

4. MURPHY JA:  I agree with Pullin JA.