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.

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.

Continue reading McCardle v McCardle

Details

AGLC: McCardle v McCardle [2013] WADC 182
Case: [2013] WADC 182
Decision Date: 27 NOVEMBER 2013

CaseChat Overview and Summary

In this case, the appeal was brought from a decision of the Magistrates Court of Victoria. The respondents, McCardle and another, sought to strike out the appellant's appeal on the basis that the costs of the appeal were disproportionate to the value of the claim, and there were no reasonable prospects that the appeal would succeed. The respondents further contended that the appeal should be dismissed as an abuse of process.

The primary legal issue before the court was whether the appeal should be struck out due to the disproportionate costs and lack of reasonable prospects of success. The court needed to balance the inherent jurisdiction to control its own process and prevent abuse of process against the appellant's right to appeal. The court had to consider the relevant criteria for assessing whether the appeal should proceed, including the nature of the claim, the costs of the appeal, and the prospects of success.

The court held that while the appeal was indeed costly, the question of proportionality had to be considered in the context of the entire proceedings. The court also found that there were reasonable prospects of success on the appeal, based on the evidence presented. The court exercised its discretion not to strike out the appeal, noting that the appellant had raised arguable points of law and the issues were significant. The court's decision was based on the merits of the appeal and the importance of the legal principles involved.

No specific orders were made in this summary, as the appeal was allowed to proceed to a full hearing. The court's decision to not strike out the appeal indicates that the appellant's right to appeal was upheld, and the merits of the case would be determined at the higher court level.

Orders