McCardle v McCardle - [2013] WADC 182

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: McCARDLE -v- McCARDLE [2013] WADC 182

CORAM: FENBURY DCJ

HEARD: 24 OCTOBER 2013

DELIVERED : 27 NOVEMBER 2013

FILE NO/S: APP 32 of 2013

BETWEEN: ROXANNE MARIE McCARDLE
Appellant
AND
MICHAEL THOMAS McCARDLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE FISHER
File No  :BUS 930 of 2013

Catchwords:

Appeal from Magistrates Court - Application to strike out because costs disproportionate to the claim and no reasonable prospects of appeal succeeding - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 43

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr I Gregory
Respondent: Mr S A McDonald

Solicitors:

Appellant: Shaddicks Lawyers
Respondent: Moore Law

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

Nil

FENBURY DCJ: These proceedings, which are between a former husband and wife, relate to a magistrates dismissal of Mrs McCardle's application for a Violence Restraining Order (VRO) against her husband Mr McCardle.
Mrs McCardle has appealed the magistrate's decision. The merits of the appeal have not been determined, but the matter is now before the court because Mr McCardle, the respondent seeks orders pursuant to s 43 of the Magistrates Court (Civil Proceedings) Act 2004.
The relevant parts of s 43 state:
(3)This court …
may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
(4)This court …
may strike out any ground of the appeal if —
(a)there is no reasonable basis for it; or
(b)it does not have a reasonable prospect of succeeding; or
(c)although it has a reasonable prospect of succeeding, no miscarriage of justice would occur by striking it out; or
(d)it is frivolous, vexatious, scandalous or improper.
(5)This court …
may make an order under subsection (3) or (4) on its own initiative.
(6)If this court …
strikes out all of the grounds of the appeal the court may give judgment accordingly without a full hearing of it.
Mr McCardle's seeks an order that Mrs McCardle's appeal be struck out, or, alternatively, the grounds of the appeal be struck out and a judgment be given accordingly.
Counsel for each of the parties have prepared and filed written submissions.
Two very lengthy sets of submissions were provided by Shaddicks Lawyers' solicitor Mr Gregory, on behalf of Mrs McCardle. One was filed on 24 October 2013 and the other on 1 November 2013.
The submissions were discursive, prolix, repetitive and difficult to read. They were not very helpful on the issues to be decided, being in effect the husband's application to bring the proceedings to an end without a consideration of the merits.
The relevant facts and factors are these. The VRO originally sought by Mrs McCardle in the Magistrates Court was based on events that allegedly occurred in about July 2012, more than 15 months ago.
Basically Mrs McCardle sought orders that her husband, who lived in South Australia, cease abusing and pestering her by telephone.
The facts relied on to substantiate this application for a VRO were that Mrs McCardle alleged she had received 35 unanswered calls from an unknown number. That is to say, allegedly on 35 occasions, her phone rang; there was no caller identification and/or she answered it; and there was no one there.
Mrs McCardle asserts that on the 36^th occasion she answered the telephone and it was her husband who was calling her. She says the conversation they had deteriorated into verbal abuse of her by Mr McCardle.
Without any technical or expert or other evidence Mrs McCardle's case is that it was her husband who made the earlier 35 'unknown calls' and that is why she should be granted the restraining order.
Mrs McCardle had, somehow, obtained an interim VRO from Magistrate Hamilton in the Magistrates Court on 11 July 2013. That order was made ex parte.
On 20 March 2013 the Magistrates Court in Busselton, somewhat perfunctorily, heard the wife's application for final orders with respect to the VRO and dismissed the application as an abuse of process.
Now, some 15 months after the alleged calls, Mrs McCardle seeks to appeal that order presumably with a view to obtaining a rehearing of the matter or, perhaps, obtaining the order itself.
The facts upon which the VRO was sought are those which were extant in July last year. The submissions filed on behalf of Mrs McCardle are permeated with references to other issues of alleged domestic violence but are non-specific as to details, times and dates.
Obviously, certainly to Mrs McCardle's legal advisors if not Mrs McCardle herself (she is a legal practitioner), there is and has been no impediment to her seeking a fresh violence restraining order or equivalent in South Australia or Western Australia should there be any basis to do so arising since July 2012.
However, Mrs McCardle has chosen not to do so. There is no suggestion that Mr McCardle has telephoned Mrs McCardle since July 2012. It is put on behalf of Mr McCardle that 'the original grounds for seeking orders are now both so stale, and sufficiently minor, that they do not justify the costs generated and likely to be generated by the appeal'.
It is then put in par 4 of the submissions:
Assuming that the appeal to this court was ultimately successful, the best result the appellant could hope to achieve would be remittal of the matter to the Magistrates Court of Western Australia for hearing. Because the appellant is already at liberty to start again, success on the appeal would place her in no better position than the position in which she already finds herself. In those circumstances, the striking out or dismissal of the appeal would give rise to no miscarriage of justice.
It is then put in par 6:
The issues which the appellant seeks to agitate on the appeal are unusual, technical and legally complex; certainly far more complex than the issues which would arise on a fresh application for a violence restraining order. They will necessarily require a considerable amount of preparation on both sides. The appeal is likely to take months to resolve.
Paragraph 8:
The conduct of the appeal proceedings by the appellant to date has occasioned the respondent considerable costs. If the appeal is not dismissed, it is likely to continue to do so. The litigation between the parties has generated a huge volume of correspondence, as evidence by the books of documents. The letter dated 11 October 2013 from the appellant's solicitors provides an indication of the kind of correspondence being sent on behalf of the appellant. This drives up costs.
Paragraph 9:
The respondent's costs of the appeal to date already exceeds the costs incurred by him in respect to the Magistrates Court proceedings. It is anticipated that, if this court considers the merits of the appeal, the respondent will incur further costs if not similar or on a greater scale.
Paragraph 10:
The likely actual costs of the parties, particularly the respondent are relevant to the exercise of the powers in s 43(3) and (4). To the extent that the respondent, if ultimately successful, may be unable to recover his actual costs from the appellant, it is submitted that is a consideration tending in favour of rather than against the exercise of those powers.
I find these submission made on behalf of the respondent compelling. In my view the likely costs of the appeal were it to proceed further would be disproportionate to the nature of the case which is the subject of the appeal. On that basis alone pursuant to s 43(3) this court has the power to strike out the appeal and I am inclined to make that order.
Furthermore, by reference to s 43(4)(b) the appeal does not have a reasonable prospect of success. Even if it might be said there is a reasonable prospect of the appeal succeeding nevertheless there would in my view be no miscarriage of justice caused by striking the matter out.
By reference to the issue of costs it is obvious that the appellant has been wholly unsuccessful in these proceedings. I can see no reason why the usual order should not be made.
Further, I agree with the submission made on behalf of the respondent that costs orders already made by the registrar of this court, and by the Magistrates Court, in favour of the respondent, should stand. The court makes the following orders:
1.Pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 this appeal is struck out.
2.The appellant is to pay the respondents costs of the appeal to be taxed if not agreed.