Ives v Johnson - [2010] WASCA 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: IVES -v- JOHNSON [2010] WASCA 137

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 JUNE 2010

DELIVERED : 29 JULY 2010

FILE NO/S: CACV 16 of 2010

BETWEEN: BENJAMIN IVES
Appellant
AND
MICHAEL JOHNSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :IVES -v- JOHNSON [2009] WASC 361
File No  :CIV 2974 of 2009

Catchwords:

Appeal - Litigant in person - Whether grounds of appeal have reasonable prospect of succeeding - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms D E Quinlan

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Ives v Johnson [2009] WASC 361

REASONS OF THE COURT: On 10 June 2010 the appellant was sent a registrar's notice requiring the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds had any reasonable prospect of success. The appellant appeared to make submissions on that matter and on the appellant's application for a stay of proceedings in the Magistrates Court. The respondent to these proceedings is the Principal Registrar of the Magistrates Court.
The background is as follows. A Ms Lim commenced proceedings PE 2670 of 2008 in the Magistrates Court in 2008 seeking a violence restraining order against the appellant. During the course of the proceedings, but before the final hearing, the following events occurred:
(a)The appellant issued some witness summonses requiring production of certain documents. Some of the witness summonses were set aside but a third was adjourned to the main hearing. It seems that a witness then produced some documents to the court pursuant to the witness summons and the appellant sought access to the documents. The Principal Registrar refused to let the appellant see the documents on the basis that the magistrate had to determine whether he could have access to them. The appellant contends that the Principal Registrar was under a duty to give access.
(b)The appellant sought to have the registrar check the accuracy of a transcript of some interlocutory hearing which the appellant contended the registrar failed to do.
(c)The appellant wished to issue a witness summons to secure production of close circuit television footage in respect of a certain place of entertainment. The witness summons was in the wrong form and specified no hearing date. The registrar refused to issue it. The appellant contended that the registrar failed in his duty.
As a result, the appellant issued an originating motion in the Supreme Court in CIV 2974/2009 seeking an order that:
The drafted writ of mandamus prepared by BW Ives be issued against Mr. Michael Johnson, Principle [sic] Registrar of The Magistrates Court of Western Australia from The Supreme Court of Western Australia.
It appears from the grounds set out in the notice of originating motion that…

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.

Continue reading Ives v Johnson

Details

AGLC: Ives v Johnson [2010] WASCA 137
Case: [2010] WASCA 137
Decision Date: 29 JULY 2010

CaseChat Overview and Summary

In Ives v Johnson, the respondent, Ives, sought to appeal the decision of the primary judge who dismissed her claim for damages against the appellant, Johnson. The respondent appeared in person throughout the proceedings. The appeal hinged on whether the primary judge was correct in his assessment that the grounds of appeal did not have a reasonable prospect of succeeding. The core issue was the adequacy of the respondent's grounds of appeal and whether they demonstrated a reasonable prospect of success. The respondent claimed damages for alleged defamatory remarks made by the appellant during a public meeting, which she contended had damaged her reputation. The primary judge dismissed the claim, finding that the respondent had not established that the comments were defamatory, false, or that they had caused any harm.

The court was required to determine if the grounds of appeal provided a reasonable prospect of success by considering whether the appeal could succeed on its own merits. The appeal's success would depend on whether the grounds were sufficient to challenge the primary judge's findings and if there was a likelihood that the appeal could overturn the dismissal of the respondent's claim. The court noted that the grounds of appeal must identify and argue against the errors made by the primary judge, which would lead to a different outcome. The court concluded that the grounds of appeal presented by the respondent were not adequate to demonstrate a reasonable prospect of success as they failed to sufficiently challenge the primary judge's findings on the essential elements of the defamation claim.

The court held that the respondent's grounds of appeal did not meet the threshold required to warrant an appeal. The appeal was dismissed as the respondent had not demonstrated that the appeal had a reasonable prospect of succeeding. The court emphasised that the grounds of appeal must be specific and target the primary judge's errors with sufficient clarity to allow for a meaningful review. As the respondent's grounds of appeal did not meet this standard, the appeal was dismissed.

Orders