M v A - [2015] WASCA 107

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…

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.

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Details

Case: [2015] WASCA 107
Decision Date: 28 MAY 2015

CaseChat Overview and Summary

The case of M v A involved an appeal by the appellant, M, against a decision of the Family Court of Western Australia. The primary issue in dispute was the custody and care of a child. The Court of Appeal had to determine whether the appeal should proceed, considering the appellant's compliance with the procedural requirements of the Supreme Court (Court of Appeal) Rules 2005 (WA). The respondent, A, sought the striking out of the appeal on the grounds that M had failed to adhere to the relevant procedural rules.

The court examined the legal issues surrounding the appellant's failure to comply with the procedural requirements, including the timeliness of the appeal and the completeness of the documentation submitted. The court considered whether the failure to comply with the rules was excusable and whether it had prejudiced the respondent. The court also assessed the impact of the procedural non-compliance on the ability to effectively argue the substantive issues of the appeal.

In delivering the judgment, the court held that the appellant's failure to comply with the procedural requirements was significant and prejudicial to the respondent. The court found that the procedural non-compliance was not excusable and had adversely affected the respondent's ability to respond adequately to the substantive issues. Consequently, the court concluded that the appeal should be struck out in its entirety. The court's decision emphasised the importance of adhering to procedural rules to ensure the fair and efficient administration of justice.

The final orders of the court included the striking out of the appellant's appeal, with no order as to costs. The decision reinforced the principle that adherence to procedural rules is essential for the proper functioning of the court system and that failure to comply can result in the dismissal of an appeal.

Orders