M v A
[2015] WASCA 107
•28 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: M -v- A [2015] WASCA 107
CORAM: NEWNES JA
MURPHY JA
CHANEY J
HEARD: 22 MAY 2015
DELIVERED : 22 MAY 2015
PUBLISHED : 28 MAY 2015
FILE NO/S: CACV 12 of 2014
BETWEEN: M
Appellant
AND
A
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MORONI
Citation :[2014] FCWAM 1
File No :PTW 4877 of 2011
Catchwords:
Practice and procedure - Appellant's case struck out for failure to comply with Supreme Court (Court of Appeal) Rules 2005 (WA)
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32, r 39
Result:
Appellant's case struck out with liberty to replead
Category: B
Representation:
Counsel:
Appellant: Mr T Stephenson
Respondent: Mr M F Rynne
Solicitors:
Appellant: Chris Williams Lawyer & Mediator
Respondent: Bowen Buchbinder Vilensky
Case(s) referred to in judgment(s):
Alfaro v Brokesova [No 2] [2013] WASCA 189
REASONS OF THE COURT: This matter was listed for hearing on 22 May 2015.
The appellant's case involves the following features.
There is one ground of appeal. It comprises one sentence, running for 3 1/2 pages. The sentence at one relatively early point in its construction, branches into five points, which themselves contain a blend of various allegations, the connections between which are not always easily discernible.
Although the sentence branches into five points, each with its own blend of different allegations, it is not clear how each is said to relate to either or both of the aspects of the prefatory part of the sentence. The prefatory part of the sentence is to the effect that the primary court made 'an error of mixed fact and law' (emphasis added) in relation to a particular order, and that the 'Orders' (apparently generally) were not 'just and equitable'. It is not clear whether the allegation that the 'Orders' generally were not 'just and equitable' itself involves a separate allegation of error, or whether it is consequential upon the single error of mixed fact and law alleged in relation to a particular order. Moreover, the single alleged error of mixed fact and law is not identified. Nor, if a separate allegation is intended in relation to the 'Orders' generally, is it clear whether the appellant is relying upon alleged errors of fact, law or mixed fact and law. The five points into which the sentence branches do not clarify matters.
As to the five points, the first point (point (a)) appears to challenge a finding that the appellant had a 5 ‑ 10% interest in a certain property. It is not said in terms whether this is an error of fact or an error law. If it is intended to allege an error of fact, the appellant should have complied with (but did not comply with) practice direction 7.4. If it is intended to be an error of law on the basis, for example, that there was no evidence to support the primary court's finding, that allegation would need to be made directly.
The second point (point (b) in the sentence) appears to suggest that the primary judge erred because he should have found that the existence of a debt (a personal obligation) itself gave rise to an interest in property. The third point (point (c)) also appears to allege an error of fact insofar as the magistrate found that it had not been established that certain payments made by the appellant for certain improvements had increased the value of the property. But it is not alleged in terms that this was an error of fact and, if it were, the appellant would need to comply with practice direction 7.4. It also alleges that had the appellant not made the payments, the respondent would have had to make the payments herself to carry out the alleged improvements. Again, that would appear to assert an error of fact, but it does not say that in terms and practice direction 7.4 was not complied with. The fourth point (point (d)) bifurcates into three further points, the second of which occupies nearly a whole page without any punctuation. This second point, at least on one view of it, appears to make a number of discrete allegations of error, without identifying whether they are errors of fact, law, or mixed fact and law.
The fifth point (point (e)) appears to suggest that there was no express error of fact or law, but rather there was inferred error in the making of a discretionary decision. Whilst that point appears to rely upon the preceding points, the preceding points tend to suggest that the appellant is suggesting that the primary court made express errors of law and fact.
The ground of appeal fails fundamentally to comply with pt 5 r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA) which provides:
(4)The document titled 'Appellant's grounds of appeal' -
(a)must contain all of the grounds of appeal on which the appellant intends to rely at the hearing of the appeal;
(b)must state the grounds, and concise particulars of them, succinctly in numbered paragraphs and must not merely allege -
(i)that the primary court erred in fact or in law;
(ii)that the primary court's decision is against the evidence or the weight of evidence or is unreasonable and cannot be supported having regard to the evidence;
(iii)that the primary court's decision is unsafe or unsatisfactory; or
(iv)in the case of an appeal against a sentence, that the sentence is excessive or inadequate;
and
(c)must state, for each ground, whether it is -
(i)an error of fact;
(ii)an error of law; or
(iii)an error of mixed fact and law.
The deficiencies in the ground of appeal might, conceivably, be overlooked if the appellant's submissions clearly identified and explained any alleged errors of fact, law, or mixed fact and law said to arise from the ground of appeal. But they do not.
The appellant's submissions, in relation to this one ground of appeal, run for some 16 pages, and comprise 76 paragraphs, in closely‑typed, ie single, spacing. A number of paragraphs (paragraphs 9 ‑ 22) purport to describe how the trial unfolded and how certain evidentiary issues were dealt with, and what was the purported basis for certain submissions by the appellant which were not 'discussed in detail' (par 20). It would appear that these paragraphs are intended to explain how the primary court came to make certain findings in light of the way the case was advanced at trial. However, it is not apparent how this material is said to be relevant to the single ground of appeal. The task for the appellant is not to explain how or why certain findings were made, but to identify with precision any alleged errors in the findings and then to demonstrate the error asserted.
Other grounds (paragraphs 23 ‑ 51) purport to provide a wide ranging excursus of various cases and legal principles, but without identifying, or at least without clearly identifying, the single alleged error of mixed fact and law apparently the subject of the ground of appeal. Further, they rather suggest that there are express errors of law made by the primary court, rather than inferred error. Other aspects of this part of the submissions deal with matters the relevance of which to the ground of appeal is not, or at least not sufficiently, identified (paragraphs 49 ‑ 51). The remaining paragraphs (paragraphs 52 ‑ 76) range over a number of topics, but do not clearly and succinctly address the alleged error of mixed fact and law, or each of the five branches of the sentence which comprises the ground of appeal.
The submissions again fundamentally do not comply with the court rules. Rule 32(5) provides, relevantly:
(5)The document titled 'Appellant's submissions' -
(a)must, for each ground of appeal, contain the appellant's written submissions (or argument) expressed so as to convey the substance of them clearly and as succinctly as possible.
The submissions are not only substantively in breach of the rules, but also technically in breach of the rules. They do not comply with r 39(6)(a) in that they are not typed using 1.5 line spacing or more. The point is not merely a pedantic one. In what would appear, prima facie, to be a relatively simple property dispute, if the appellant is unable to make the appellant's submissions conform with the prescribed length by using at least 1.5 space type, it rather suggests that attention needs to be brought to bear in identifying precisely any alleged errors, and explaining them clearly and succinctly.
As this court observed in Alfaro v Brokesova [No 2]:[1]
[1] Alfaro v Brokesova [No 2] [2013] WASCA 189 [4] ‑ [5].
In Civil Procedure in Western Australia [3925.6], Kendall and Curthoys observe that:
'Rules 32 draws together and reinforces the principles which guided the former practice. It had long been said that grounds of appeal are intended to be simply and shortly stated: Sansom v Sansom [1956] 3 All ER 446. The practice of drawing multiple grounds which restated the same point in several different ways and in no particular order was confusing, unnecessary, and to be discouraged: Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 at 81, 87; [1999] WASCA 158; BC9905687 at [1], [36] (FC). Grounds of appeal are to be formulated with clarity and the manner in which the trial judge is said to have erred in law or in fact should be clearly identified as must any facts which it was contended he or she should have found: Festic v Atkinson (WASC, Full Court, Lib No 8484, 19 September 1990, unreported, BC9001118).'
Practice direction 7.4 serves the important purpose of seeking to ensure that practitioners do not make allegations of factual error which, objectively, enjoy no reasonable prospects of success, by directing attention to the evidence which supports the findings of fact made by the judge. Practice direction 7.4 provides, inter alia:
'2.When an appellant relies on a ground of appeal which requires the Court of Appeal to undertake a review of the evidence, the appellant's case must identify in the appellant's submissions or in a schedule, not only the evidence which supports the appellant's ground, but also all the evidence which supports the verdict or the finding of fact of the primary court which is challenged.
3.The respondent's answer must state whether the respondent agrees that all relevant evidence has been identified in the appellant's case, and if not, to refer to any such evidence that the appellant failed to identify.
…
5.Evidence which is identified must be identified by reference to a transcript page, exhibit or an unchallenged finding of fact.
6.If a party is represented by a lawyer, the lawyer must sign a certificate that this Practice Direction has been complied with, and type or legibly print his or her name under the signature. (original emphasis)'
The appellant's case, and in particular its single discursive ground of appeal running over several pages with submissions equally, if not more, discursive, provided no proper or reliable framework for the identification and correction of any alleged error in the primary court. The appellant's counsel was unable to show cause why the appellant's case should not be struck out. Moreover, the appellant's counsel did not contend that the ground and submissions could properly stand in their present form. Accordingly, the court struck it out with liberty to file and serve a substitute case. The court also ordered that the respondent have the costs thrown away. Quite properly, counsel for the appellant accepted that those costs should be visited on counsel, and not on the client.
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