McCardle v McCardle - [2014] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McCARDLE -v- McCARDLE [2014] WASCA 129

CORAM: MURPHY JA
EDELMAN J

HEARD: 20 JUNE 2014

DELIVERED : 15 JULY 2014

FILE NO/S: CACV 3 of 2014

BETWEEN: ROXANNE MARIE McCARDLE
Appellant
AND
MICHAEL THOMAS McCARDLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
Citation  :McCARDLE -v- McCARDLE [2013] WADC 182
File No  :APP 32 of 2013

Catchwords:

Appeal against District Court decision to strike out appeal against decision dismissing application for violence restraining order - Appeal commenced out of time - Whether appellant be given an extension of time to commence the appeal - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43
Rules of the Supreme Court 1971 (WA), O 65 r 4(1), O 67 r 19(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 29, r 32, r 43(2)(g)(i), r 44(1),

Result:

Leave to extend time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T Grant

Solicitors:

Appellant: In person
Respondent: Boylan Lawyers

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

Ketteman v Hansel Properties Ltd [1987] AC 189
McCardle v McCardle [2013] WADC 182
Simonsen v Legge [2010] WASCA 238
The Commonwealth v Verwayen (1990) 170 CLR 394

MURPHY JA & EDELMAN J: By a combination of a registrar's notice to attend dated 16 May 2014 and an order dated 30 May 2014, this matter was listed for hearing on 20 June 2014:
1.To consider whether the appellant be given an extension of time within which to commence the appeal.
2.To consider whether leave be given to the appellant to file out of time the appellant's case dated 15 April 2014.
3.To consider the respondent's application dated 26 February 2014.
4.To consider the appellant's application filed 29 May 2014.
The appeal concerns the primary judge's decision in McCardle v McCardle [2013] WADC 182. As we explain in more detail later in these reasons, the primary judge dismissed an appeal from a decision of Magistrate Fisher who had dismissed the appellant's application for a Violence Retraining Order (VRO). The primary judge ordered that the appeal be dismissed on the basis that the likely costs of the appeal were it to proceed further, would be disproportionate to the nature of the case which was the subject of the appeal: s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
The references to paragraph numbers below are references to paragraph numbers in the primary judge's reasons. The references to 'Z' followed by a page number are references to the decision of Magistrate Fisher contained in the affidavit of the respondent's solicitor, Ms Zanol, sworn 26 February 2014.
The appellant is a lawyer, and appeared for herself in this matter.

The background and the proceedings below

According to the appellant, the parties were married in 1981. The appellant now lives in Western Australia…

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 [2014] WASCA 129
Case: [2014] WASCA 129
Decision Date: 15 JULY 2014

CaseChat Overview and Summary

The appellant, McCardle, sought to appeal a District Court decision to dismiss their application for a violence restraining order. The District Court had struck out an appeal against the dismissal, finding that the appeal was commenced out of time. McCardle now appeals to the court, arguing that they should be granted an extension of time to commence the appeal. The legal issues before the court were whether the appellant was entitled to an extension of time and if so, on what basis.

The court considered the principles governing extensions of time for commencing appeals, particularly in cases involving domestic violence restraining orders. It examined the circumstances of the appellant's delay in commencing the appeal and the impact of that delay on the respondent. The court also considered whether the appellant had a reasonable excuse for the delay and whether the delay had caused any prejudice to the respondent. After weighing these factors, the court concluded that the appellant was not entitled to an extension of time. The appellant's delay was not reasonable, and the respondent had been prejudiced by the late commencement of the appeal.

The court found that the appellant had failed to establish any exceptional circumstances that would warrant an extension of time. The appellant had not provided a satisfactory explanation for the delay, and the court was not satisfied that the delay was due to any fault or oversight on the part of the appellant's legal representative. Furthermore, the court found that the respondent had been prejudiced by the delay, as it had been forced to defend the appeal without the benefit of the appellant's full case. The court held that the appellant's appeal should be dismissed and that the District Court's decision to strike out the appeal should be affirmed. The court ordered that the appeal be dismissed with costs.

Orders