KSL v JGK
[2014] WASCA 34
•10 FEBRUARY 2014
KSL -v- JGK [2014] WASCA 34
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 34 | |
| THE COURT OF APPEAL (WA) | 10/02/2014 | ||
| Case No: | CACV:146/2013 | 6 JANUARY 2014 | |
| Coram: | PULLIN JA | 6/01/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KSL JGK |
Catchwords: | Application for stay of orders of Family Court of Western Australia Principles governing application for a stay Whether proposed grounds of appeal have reasonable prospect of succeeding Turns on own facts |
Legislation: | Nil |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Weinert v Clark [2006] WASCA 253 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KSL -v- JGK [2014] WASCA 34 CORAM : PULLIN JA HEARD : 6 JANUARY 2014 DELIVERED : 6 JANUARY 2014 PUBLISHED : 10 FEBRUARY 2014 FILE NO/S : CACV 146 of 2013 BETWEEN : KSL
- Appellant
AND
JGK
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : THACKRAY CJ
File No : PTW 2931 of 2010
Catchwords:
Application for stay of orders of Family Court of Western Australia - Principles governing application for a stay - Whether proposed grounds of appeal have reasonable prospect of succeeding - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms G A Archer SC
Solicitors:
Appellant : In person
Respondent : Lawton Gillon
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Weinert v Clark [2006] WASCA 253
- PULLIN JA:
(This judgment was delivered extemporaneously on 6 January 2014 and has been edited from the transcript.)
1 The appellant applies for a stay of an order made by Thackray CJ on 20 December 2013. The order was, in effect, that the respondent arrange for the child of the parties to receive childhood vaccinations and/or inoculations recommended by a named medical practitioner. The application for the order was made on 11 September 2013. It was supported by an affidavit of the respondent which stated, among other things:
[T]he mother and I have … conferred by email in order to achieve a joint parenting resolution as to whether our son … should complete his immunisation schedule … The mother has refused her consent to [him] being vaccinated … and refuses to discuss the matter further. In these circumstances, further conferral is unlikely to resolve the issue.
2 There was also exhibited to that affidavit a report dated 17 June 2013 by a named general practitioner. It read:
I do note that this young man has not been correctly vaccinated with the accepted schedule recommended in this State. He is therefore potentially prone to various illnesses and harbouring illnesses that could affect other children and certainly his unborn sibling. In this day and age this situation poses an unacceptable and unnecessary risk. I naturally advocate a catch up regime of vaccinations and have printed such a list today and provided it to his father.
3 There was an immunisation list accompanying that report.
4 The affidavit revealed that since the end of the relationship between the parties the respondent had remarried and that on 2 July 2013 (the respondent said in his affidavit to the Family Court):
My wife and I consulted … our obstetrician about the risks of [the child] not being immunised and having contact with our unborn child, whose expected birth date is … January 2014. [The obstetrician] produced a short letter recommending [the child] be immunised for his and my wife's health, and for the protection of our unborn child.
5 When the matter came on for hearing before Thackray CJ on 23 September 2013, the appellant asserted from the bar table that the child was at risk of side effects from immunisation. The court ordered that the appellant file a written response to the application along with affidavits she wished to rely on, and that these should be filed by 16 October 2013. No response was filed and no affidavits were filed.
6 On 23 October 2013, the court ordered that both parties provide the names of specialists to provide a report on the issue of the child's immunisation. The respondent nominated two medical experts; the appellant mother did not nominate any experts. However, she said she accepted, with reservations, the selection of the two experts nominated by the respondent. The chief judge appointed one of the experts, Associate Professor Blyth, to report. Associate Professor Blyth is a specialist paediatrician, an infectious diseases physician and a clinical microbiologist. He works as a consultant paediatrician and microbiologist at Princess Margaret Hospital.
7 In Associate Professor Blyth's report, dated 6 December 2013 and addressed to the chief judge of the Family Court of Western Australia, he says in the second last paragraph of a two page report referring to the child:
He remains at an increased risk of vaccine preventable diseases compared to other children his age. Immunisation is the most effective way to decrease this risk. Immunisation has the potential to benefit not only [the child] but also the broader community through maintaining high levels of herd immunity against vaccine preventable infections. In WA, immunisation remains the choice of a child's parents.
8 There is then a reference to the immunisation program which should be followed.
9 The respondent's application in the Family Court was relisted for hearing on 17 December 2013. The appellant said that this was not convenient so it was adjourned to 20 December 2013.
10 On 20 December 2013, there was a hearing. There were still no affidavits or a written response from the appellant. However, it seems that the appellant had indicated to, or word had reached, Associate Professor Blyth that the appellant contended that the child had suffered side effects when the child had some of the first stage vaccinations. In the appellant's affidavit in this court the appellant says that the child suffered serious reactions and worsening chronic medical issues following all previous vaccinations, including an admission to hospital. The respondent omitted this important medical evidence from his application. However, Associate Professor Blyth evidently knew about these matters and in the third last paragraph of Associate Professor Blyth's report dated 6 December 2013, he said:
In summary, [the child] is a seven-year-old boy with a history of chronic constipation, eczema and atopy (an increased risk of allergy as indicated by his allergy testing). He does not have a history of anaphylaxis to vaccination nor evidence of significant immunodeficiency. These are the only absolute medical contraindications to vaccination. Infantile irritability, eczema and atopy are not contraindications to vaccination. The rate of adverse reactions to routine vaccinations in children with eczema or atopy are similar to the general population. I therefore do not think that [the child] is [at] a significantly increased risk of adverse events compared with his peers.
11 Thackray CJ said that he accepted the opinion of Associate Professor Blyth, made the orders which are being appealed against, and made an order that the child not be immunised before 7 January 2014.
12 The appellant filed an appeal notice in this court on 30 December 2013, and on 3 January 2014 sought this stay pending the hearing of the appeal.
13 The principles governing an application for a stay of judgment pending an appeal are well settled. They were stated in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. Those general principles are that the successful litigant, at first instance, will ordinarily be entitled to enforce the judgment, pending the determination of any appeal. It is for the applicant for a stay to move the court to a favourable exercise of its discretion. The court will not grant a stay unless special circumstances are shown justifying the departure from the ordinary rule. A central issue will be whether the stay is perceived to be necessary to preserve the subject matter or integrity of the litigation; that is whether, without the grant of a stay, the right of appeal will be rendered nugatory. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success. The stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.
14 These principles have been followed in many cases in the Court of Appeal. It is clear that just because an appeal might be rendered nugatory, it is not sufficient justification for a stay if the appeal has no reasonable prospect of success: see Weinert v Clark [2006] WASCA 253 [23].
15 The appellant has filed no grounds of appeal or proposed grounds of appeal, but during the course of oral submissions, it appears that there might appear, in the appellant's case, grounds of appeal alleging first, a miscarriage of justice because the respondent did not disclose that he had previously agreed that the child not be immunised. In fact, that material was known to the chief judge at the time he made his decision, so there can be no reasonable prospect that that ground would succeed. Secondly, the appellant contends that there was a report from another named general practitioner who reported that it was not necessary to immunise the child. The practitioner's report appears in the appellant's affidavit filed in this court and it reads, in part, referring to the child:
He is thus fully vaccinated against hepatitis B, and partly vaccinated against meningitis B, pneumonia, polio, tetanus, whooping cough and diphtheria. I do not believe that his partly vaccinated state will pose a problem for the other children at the school. In view of his reactions it's not unreasonable that he not be vaccinated.
16 If it is to be maintained that there was a miscarriage of justice because of non-disclosure of this information, it appears that the chief judge was aware that there had been this agreement between the parties and a report of a doctor to support it. So there are no merits in those two allegations of potential miscarriage.
17 The other possible grounds which could be deduced from submissions made by the appellant are first, that there was a failure to take into account that inoculation is an invasive procedure and that the child had suffered side effects (that is, that this was not taken into account by the chief judge). That ground has no reasonable prospect of succeeding because it is quite clear that his Honour did know that the procedure was an invasive procedure because he knew what the procedure was, and he also knew that there had been side effects, and that Associate Professor Blyth had commented on them and ruled them out as being side effects as the appellant seems to think that they were.
18 It was then submitted by the appellant that the matter was 'pushed through too quickly' and that it should not have been dealt with on 20 December 2013. It was not pushed through too quickly because the matter had been pending since September 2013 and there had been two hearings before 20 December 2013 where directions had been given about the disposition of the matter, and the appellant had not taken the opportunity to file any documents or affidavits in opposition to the orders that were ultimately made. So a ground of appeal formulated in that way would have no reasonable prospect of succeeding.
19 There is then a general allegation that the chief judge was biased, but it became clear that what was being alleged was reasonable apprehension of bias. This was because it was said that the judge had expressed an opinion, in September 2013, about the advisability of children being vaccinated. His Honour, in his reasons for decision, noted that this allegation had been made and expressed the view that it was a topic on which members of the public have attitudes about in general terms, but went on to say that he was dealing with the matter based on the evidence before him. It is clear from his Honour's reasons that he did deal with the matter based on the evidence before him and on the basis that there was no evidence to contradict the evidence which had been provided by the respondent.
20 It was then alleged that there had been no child representative appointed. It appears that a child representative had been appointed at some time in the past, but there had been a discharge of that order. On 23 October 2013, there had been a further order for a child representative to be appointed in relation to this dispute, but it was clear by the formulation of the order that the child representative was to be appointed when Legal Aid agreed to fund representation. Legal Aid refused to provide such funding.
21 There is no appeal against the order dismissing the appellant's application for an adjournment. The appeal is against the order for immunisation.
22 There being no reasonable prospects of any of those proposed grounds of appeal succeeding, the application should be refused.
23 I, of course, recognise that the appeal would be rendered nugatory if the child is immunised before the appeal can be heard, but the authorities are clear that a stay should be refused, even in those circumstances, if the appeal has ultimately no reasonable prospects of succeeding. At the moment I see no reasonable prospect of the proposed grounds of appeal succeeding. As a result, the application is dismissed.
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