Law v Audrey Frances Hall as Executrix of the Estate of the late Kenneth Duncan Hall
[2008] WASCA 257 (S)
•4 DECEMBER 2008
LAW -v- AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2008] WASCA 257 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 257 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:106/2008 | 4 DECEMBER 2008 | |
| Coram: | PULLIN JA BUSS JA | 3/12/08 | |
| 19/01/09 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MAURICE FREDERICK LAW AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL |
Catchwords: | Application to recall judgment Turns on own facts |
Legislation: | Nil |
Case References: | Smith v New South Wales Bar Association (1982) 176 CLR 256 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAW -v- AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2008] WASCA 257 (S) CORAM : PULLIN JA
- BUSS JA
DECISION : 20 JANUARY 2009 FILE NO/S : CACV 106 of 2008 BETWEEN : MAURICE FREDERICK LAW
- Appellant
AND
AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL
Respondent
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ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255
File No : CIV 1775 of 2008
Catchwords:
Application to recall judgment - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr A M Prime
Solicitors:
Appellant : In person
Respondent : McCallum Donovan Sweeney
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Case(s) referred to in judgment(s):
Smith v New South Wales Bar Association (1982) 176 CLR 256
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1 REASONS FOR JUDGMENT OF THE COURT: On 4 December 2008 the court dismissed the appeal on the basis that none of the grounds had any reasonable prospect of succeeding. The appellant has made an application by facsimile dated 13 December 2008, in effect asking the court to recall the judgment before it passes the seal of the court. The background is as follows.
2 The appellant was notified of the 4 December 2008 hearing date on 26 November 2008.
3 By letter dated 27 November 2008 the appellant wrote to the 'Appeals Court'. The letter read:
I wish to notify you that we will not be able to deal with this matter till after the Christmas period, namely the 12th January 2009.
I hope that you can accommodate this notice.
4 By letter and email dated 1 December 2008 the associate to Justice Pullin wrote to the appellant in response. The letter read:
I write in reply to your letter dated 27 November and received by the court on 28 November 2008.
The hearing on 4 December remains listed at 11.30 am. If you do not attend on 4 December, the court may proceed to hear the respondent's application in your absence. If you wish the court to consider your application to have the date adjourned, you must provide written submissions as to why you are unable to attend.
If you have any further enquiries please contact the Court of Appeal Office on 9421 5347.
5 By letter dated 1 December 2008, the appellant responded. The letter read:
We wish to advise the court, that the date of 4th December 2008 for the Appeal hearing is not possible for our case. At this stage we are hoping to be available after the 12th January 2009. A future date of 11th February 2009 is committed.
Currently I am scheduled for surgery some time end of January early February, but if surgery becomes available I may take it sooner.
6 The letter was accompanied by a document dated 15 October 2008 addressed 'TO WHOM IT MAY CONCERN' and signed by Dr Harinder Paul, North Street Medical, Midland. This read:
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- THIS IS TO NOTIFY THAT MR MAURICE LAW IS UNDER TREATMENT FOR HIS MEDICAL AND SURGICAL CONDITIUONS [sic].
HE WILL BE UNABLE TO ATTEND COURT ON 04/12/08, HAS APPOINTMENT WITH HAND SPECIALIST ON 12/12/08 FOR HIS RIGHT HAND FINGER PROBLEM.
HE IS ON LIST FOR HIS MULTIPLE HERNIA SURGERY AND CAN BE CALLED FOR SAME AT SHORT NOTICE.
UNDER SUCH CIRCUMSTANCES IT WILL BE REASONABLE TO EXCUSE HIM TO ATTEND COURT FOR NEXT COUPLE OF MONTHS.
7 Mr Law was contacted by an associate at around midday on 3 December. The associate told Mr Law that if he wanted to ask the court for an adjournment he had to attend court on 4 December and request an adjournment.
8 By facsimile dated 3 December 2008 (received at the court at 8.24 pm) the appellant wrote to the 'Court of Appeal'. The letter read:
I wish to advise that I shall not be in attendance for the hearing tomorrow 4th December 2008 after 11.30am on advised medical grounds.
The court has been provided with reasonable grounds for an adjournment as requested until after the 12th of January 2009.
It would be deemed by the writer to be unreasonable of the court not to accept the opinions of a certified doctor's report which has been supplied to the court.
As previously advised I have been on medication for infections cause [sic] by an infestation of fleas in horse feed which attacked the whole of my exposed body. I have undergone a biopsy to ascertain if the infection is contagious or not and I am endeavoring [sic] to ensure that I do not expose the community unduly to any contagious infections.
Injuries to my hand and a tooth extraction are not healing in a manner that they should and other bodily functions are not as they should be which is causing uncontrollable intermittent vomiting spasms and involuntary bowel movements and such conditions are not conducive to being in a position to mentally present my case, a matter in which I am eager to conclude.
I have provided a doctor's certificate to the Court to say I am not well to attend the hearing on the 4th of December 2008, I feel that this is sufficient.
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9 The reference to 'a doctor's certificate' is to Dr Paul's 15 October 2008 document set out above.
10 By letter dated 4 December 2008, sent by facsimile, the associate to Justice Pullin wrote to Mr Law. The letter read:
I confirm our telephone conversation of 3 December 2008; I informed you that if you wanted to apply for an adjournment you would have to attend the court today to ask for one, and that if you did not attend then the hearing might proceed without you; and I asked whether you understood that. You said yes. I also asked you if you knew that the hearing was today at 11.30am and you said yes.
I refer to your facsimile received at 8.24pm on 3 December 2008.
The appeal, Law v Hall 106/2008, has been listed for hearing today, 4 December 2008, at 11.30am.
If you wish to apply for an adjournment you must do so in person, before the judges of the Court, at that time.
If you do not appear today at 11.30am, the hearing of the appeal may proceed, and be heard and determined at that time in your absence.
11 The associate checked the facsimile machine and found that there was no confirmation that the facsimile had been sent.
12 The associate to Justice Pullin then telephoned the appellant. She read the facsimile dated 4 December 2008 to him. The associate asked whether he understood that he would have to attend court on that morning and he advised that he was 'not very well' but that if it was just for him to ask for an adjournment, then he felt that he could do that.
13 The appellant attended at court and made no application for an adjournment and made submissions concerning the merits of the appeal. After the hearing the court upheld the respondent's application to dismiss the appeal and dismissed the appeal with reasons to be published later. Reasons have been published. Submissions were heard concerning costs and a costs order was made.
14 By letter dated 13 December 2008 the appellant wrote to the registrar as follows:
Without prejudice to any other matter I supplied an affidavit to the Court along with a doctor's certificate on the 3rd of December 2008 indicating that I was not well enough to attend and conduct myself in the hearing of the 4th of December 2008. However, I still received a call from [an]
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- associate; … on the morning of the hearing perceived as an insistence that I attend the court hearing of the 4th of December 2008. Under duress and perceived coercion created by the said phone call from [the associate] I attended the hearing of the 4th instance. During the hearing I was not in a mental or physical condition to attend and furthermore without alternative legal representative which resulted, in my opinion, a rush to judgment by the appeal court due to ignorance of facts regarding my mental state of mind.
To further indicate my mental and medical conditions I have included another report indicating my medical condition to conduct a fair presentation to the appeal held on the 4th of December 2008.
I supplied an affidavit in brief (Another copy included in this letter) prior to the hearing of the 4th instance sketching the reasons for my appeal with the intentions to detail in person to the court the reasons why the appeal was sought on the grounds of a denial of Natural Justice had occurred in the hearing of the 29th of November 2008, and why the appeal Court should overturn the hearing of the 29th of November 2008. However, yet again the Courts of Western Australia are, in my opinion, impinging on my Commonwealth Constitutional rights to a point of perceived misconduct necessitating Federal Court intervention in these matters to enable me to obtain justice.
The appeal Court should set aside its ruling of the 4th of December 2008 on the medical and mental grounds stated above.
15 Attached to this letter was a pre-admission clinic notice from the Joondalup Health Campus advising that he had an appointment on 16 December 2008 for a 'pre-admission clinic'. Also attached was a letter dated 9 December 2008 addressed 'TO WHOM IT MAY CONCERN' and signed by Angela Formato, Registered Psychologist. The letter read:
Mr Law was referred to me for counselling sessions by Dr Harinder Paul of North Street Medical Centre in Midland. The referral was in relation to anger issues with himself and to others, with him feeling depressed and anxious, and consequently him not dealing with his current situation, ie, legal, family, and health issues. These issues resulted in periodical spontaneous and detrimental actions, which manifest themselves under certain pressures placed on him at difficult times, resulting in Mr Law taking action which is detrimental to himself.
Mr Law has attended me for ten (10) counselling sessions with the focus being to assist him with developing coping strategies, and building his self-esteem through the use of cognitive behavioural therapy (CBT). During the sessions, the focus had been to assist him with developing positive cognitions regarding himself and his environment through the use of positive reframing, including breathing / stress management techniques to control his anger and frustration during this very difficult period.
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- Mr Law has suffered depression during this period and as a result reported not coping with his circumstances, and has ongoing coping difficulties and continues to attend with his treating doctor for ongoing medical treatment.
In the coming sessions Mr Law and I plan to develop further coping strategies and self-esteem building through the continued use of CBT. I am of the professional opinion that Mr Law is at the threshold of breaking through his difficulties, and I feel confident given his continued improvement, should be in a position to be fully in control by early in the new year of 2009.
16 Also attached was a further copy of the letter from Dr Harinder Paul dated 15 October 2008 referred to above. Also attached was an affidavit referring to some aspects of the background to the appeal.
17 It is only necessary to add to this history that the appellant appeared healthy on his appearance in court on 4 December 2008, he made no complaint about anything said to him by the associate to Justice Pullin, he did not complain of ill-health, he did not apply for an adjournment and he made submissions on the merits of the respondent's application.
18 In oral submissions on the hearing of this application to recall, the appellant displayed no difficulty in expressing himself. He asked whether the members of the court had received a letter from him dated 14 January 2009. They had not, but it had been received by the Registry and a copy was obtained and examined during the hearing. It was found to contain nothing relevant to the application to recall the judgment.
19 The court does have power to recall a judgment if it has not passed the seal of the court but it is one that is exercised having regard to the public interest in maintaining finality of litigation: Smith v New South Wales Bar Association (1982) 176 CLR 256, 265. It will not exercise the power unless there has been some miscarriage or change in the law requiring the court to take that step.
20 Nothing in the material referred to above persuades the court that it should recall its judgment. The grounds still do not have any reasonable prospect of succeeding and there is nothing in that material which leads the court to the conclusion that there has been any lack of procedural fairness. Instead, the material reveals that the appellant displayed a desire to avoid having to deal with the respondent's application to have the appeal dismissed. The result is that the application to recall the judgment is dismissed.
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