McCardle v McCardle
[2014] WASCA 129
•15 JULY 2014
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 and the respondent now lives in South Australia.
The history between the parties is lengthy and complicated. It spans a number of years, various courts and three curial jurisdictions (South Australia, Western Australia and proceedings in the Federal Magistrates Court). For present purposes, it is sufficient to note the following as it appears from the material available to us.
The appellant originally obtained, in Adelaide, a restraining order against the respondent in about March 2010. That order expired in March 2012 [Z 62]. The appellant then applied for and obtained an ex parte interim violence restraining order in the Magistrates Court in Busselton against the respondent on 11 July 2012 (the July 2012 ex parte VRO) (Z 62; [13]). (It may be noted here that in relation to the application from the learned magistrate to the primary judge there is a typographical error in [13] of the primary judge's reasons where his Honour refers to '11 July 2013' instead of '11 July 2012'.)
The July 2012 ex parte VRO was obtained on the basis that the appellant had allegedly received unwanted telephone calls on 'at least 33 occasions', and that those calls came from the respondent in mid‑2012 (Z 62 ‑ 63; [8] ‑ [12]). The appellant reiterated these matters in her affidavit of 11 March 2014, where she described the telephone calls as calls received to her mobile number from a 'blocked number caller'. She said she answered one of these calls and the respondent started swearing at her and abusing her with foul language (par 23). In the July 2012 ex parte VRO decision, the learned magistrate drew the inference that the telephone calls were connected with the reinstitution of Family Court proceedings by the appellant.
The telephone calls allegedly made by the respondent were also raised by the appellant as an aspect of certain family law proceedings between the parties in the Federal Magistrates Court in which certain injunctive relief was sought by the appellant (Z 63 ‑ 64). The proceedings in the Federal Magistrates Court were determined on 30 October 2012 (Z 64).
Prior to the hearing for final orders in relation to the appellant's ex parte VRO dated 11 July 2012, the respondent made an application to strike out the restraining order proceedings on the basis that they were an abuse of process in light of the determination of the matters in the Federal Magistrates Court. The strike‑out application was heard on 20 March 2013 in the Busselton Magistrates Court by Magistrate Fisher (Z 62 ‑ 66). Magistrate Fisher made orders that day (the March 2013 orders) to the effect that the July 2012 order be cancelled, and that the appellant's application for a violence restraining order of 11 July 2012 'be stayed permanently and otherwise dismissed'. Magistrate Fisher also ordered the appellant to pay the respondent's costs.
On or about 10 June 2013, the appellant appealed to the District Court of Western Australia against the March 2013 orders. The appellant had three grounds of appeal in relation to the substantive decision of Magistrate Fisher, and one ground of appeal in relation to costs. The three grounds of appeal concerned alleged errors by the learned magistrate as follows:
1.The Magistrate erred in law by dismissing violence restraining order no. BUS930/12 by failing to consider its territorial application which was confined to Western Australia as against the territorial operation of the injunctions sought from the Adelaide registry of the Federal Magistrates Court which could not have had operation in Western Australia.
2.In the event violence restraining order BUS930/12 had territorial operation beyond Western Australia the Western Australian Magistrate erred in law by failing to consider the operation of Section 114AB of the Family Law Act 1975 which precluded the Appellant from applying for injunctions sought from the Adelaide registry of the Federal Magistrates Court.
3.By adopting a procedure in accordance with Section 17 of the Magistrates Court (Civil Proceedings) Act 2004 the learned Magistrate erred in law because the correct procedure to be adopted in accordance with Section 72(1)(a) of the Restraining Orders Act was the procedure prescribed in Section 45 of the Restraining Orders Act. The Magistrate erred in law in failing to give the Appellant the opportunity to adduce evidence about whether there had been a hearing on the merits by the Federal Magistrate on her injunction applications.
In the District Court appeal, the respondent brought an interlocutory application seeking orders, relevantly, to the effect that:
1.Pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act the appeal be struck out, alternatively, pursuant to s 43(4) of that Act, grounds 1, 2, 3 and 4 of the amended notice of appeal be struck out.
2.The appellant pay the respondent's costs of the appeal, to be taxed or agreed.
Section 43 of the Magistrates Court (Civil Proceedings) Act provides:
43.Appeal court's powers
(1)This section applies to a court (the appeal court) that is dealing with an appeal under section 40, 41 or 42 against an order or judgment of another court (the lower court).
(2)The appeal court may ascertain what material or evidence was before the lower court in any manner that it considers sufficient.
(3)The appeal 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)The appeal 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)The appeal court may make an order under subsection (3) or (4) on its own initiative.
(6)If the appeal court strikes out all of the grounds of the appeal the court may give judgment accordingly without a full hearing of it.
(7)The appeal court may -
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
(c)order a new hearing in, or trial of, the case to be held in the Magistrates Court;
(d)order the Magistrates Court to enter judgment in favour of a party;
(e)make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court;
(f)make any orders that are necessary as a result of other orders it has made.
The respondent's application was heard on 24 October 2013. On 27 November 2013, Fenbury DCJ delivered reasons and allowed the respondent's application. He made orders in the following terms:
1.Pursuant to section 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 the appeal is struck out.
2.The appellant pay the respondent's costs of the appeal to be taxed if not agreed.
Amongst other things, his Honour said:
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.
…
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 [2012]. 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 evidenced 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 submissions 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 [6] ‑ [7], [14] ‑ [25].
On 7 January 2014, the appellant filed a notice to appeal. In order to commence the appeal in time, a notice of appeal was required to be filed and served by, at the latest, 18 December 2013: pt 5 r 26 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). On 11 March 2014, the appellant filed an amended appeal notice which stated that the last day for appealing Fenbury DCJ's decision was 18 December 2013.
On 5 March 2014, the respondent filed an application dated 26 February 2014 within the appeal for orders that:
(a)the appeal be dismissed pursuant to r 43(2)(g)(i) and r 44(1) of the Court of Appeal Rules and O 65 r 4(1) of the Rules of the Supreme Court 1971 (WA) (RSC) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding; alternatively
(b)that appeal grounds 1, 2, 5 ‑ 15 be struck out on the basis that they have no reasonable prospect of succeeding; alternatively
(c)the appeal should only proceed upon the appellant providing security for costs in the sum of $30,250.
The respondent's application dated 26 February 2014 was supported by affidavits of the respondent's solicitor, Ms Zanol, sworn 26 February 2014 and 28 May 2014.
On 29 May 2014, the appellant filed an application in the appeal seeking orders in these terms:
1.Any extension of time be granted as considered necessary to the appellant.
2.The respondent's orders sought for security for costs and other orders be dismissed.
3.This appeal be granted forthwith and without further delay.
4.Such further and other orders as this honourable court deems appropriate.
The appellant filed an affidavit on 11 March 2014 and an affidavit on 29 May 2014. In addition, there was an affidavit of the appellant bearing the date 12 April 2014 sent to the court on or about 15 April 2014. It was not filed, as the relevant fee was not paid.
Much of the affidavit filed on 11 March 2014 addressed matters allegedly involving the appellant and the respondent in the period 2009 ‑ 2012 and, in relation to some matters, 15 years prior to the commencement of that period (pars 4 ‑ 19). It also referred to disputes between the parties and other proceedings in which the parties had been involved, including other alleged incidents involving the parties in 2012 and 2013 (pars 20 ‑ 34).
In her unfiled affidavit dated 12 April 2014, the appellant said that she is a family law practitioner and not experienced in the practice and procedure of the Supreme Court and that she is not experienced in appeals (par 11). She also stated that since she obtained the July 2012 order and it was served on the respondent, she had not received any more 'blocked number calls' (par 7). Although she has not received any more 'blocked number calls' since that time, the appellant said that the respondent had 'still harassed or tried to intimidate [her] every time [she] … returned to South Australia (SA) which is every couple of months' (par 8). Her affidavit dated 12 April 2014 also referred to certain bills she had received relating to the respondent's business in South Australia and to certain communications with the Australian Taxation Office, and made a number of statements criticising the respondent's character, psychological state and conduct (pars 12 ‑ 18). The 'appellant's case' is a document which was sent to the court with the appellant's affidavit dated 12 April 2014.
The appellant's affidavit filed 29 May 2014 referred largely to other proceedings between the appellant and the respondent, the difficulties she has had since the separation from the respondent and stated that she has been 'exceptionally busy with a Family Law Court Appeal which is also involving the former husband' (par 3).
Both parties filed written submissions. The appellant filed written submissions on 30 May 2014 and the respondent filed written submissions on 28 May 2014. The parties were given leave to file responsive submissions. The respondent filed responsive submissions on 6 June 2014.
After the registry had closed on 18 June 2014, the appellant faxed three documents to the court. One was a minute of proposed orders in relation to an extension of time and the dismissal of the respondent's application. The two other documents purported to be affidavits, although they were not in proper form. One annexed a chronology of events spanning the period 1981 ‑ 2014. The other principally addressed a number of matters, some going back to 1988, which were said to indicate why it would be unfair and prejudicial to make any order for security for costs.
The document described as the 'appellant's case'
The document described as the 'appellant's case' contains 15 grounds of appeal. Grounds 1 ‑ 2, 7, 8 and 9 allege, in effect, that his Honour erred by failing to deal with and appropriately address all of the issues raised in the appeal. Grounds 3, 4 and 5 allege, in effect, that his Honour was biased or ostensibly biased. Ground 6 alleges that his Honour failed to consider the 'jurisdictional costs issue in his decision, and previous offers to settle by the appellant'. Grounds 10, 12 and 13 allege, in effect, that his Honour failed to consider the importance of preventing domestic violence, the impact of domestic violence on victims and, in particular, the effect of the alleged abusive telephone calls on the appellant. Ground 14 alleged that his Honour failed to acknowledge the burden of proof in civil matters. Grounds 11 and 15 are to the effect that his Honour failed to consider the relevant materials and failed to give the appellant a fair hearing.
In the 'appellant's case' the 'orders sought' are as follows:
1.That pursuant to s 59 of the Supreme Court Act 1935 (WA) and under the Supreme Court (Court of Appeal) Rules 2005 (WA) the decision by his Honour Judge Fenbury be set aside.
2.That the interim VRO be reinstated forthwith with liberty to the appellant to apply to vary the Orders sought if necessary.
3.That the VRO application matter be listed for hearing in the Busselton Magistrates Court on a date to be advised.
4.That the strike out application of the respondent be listed for re‑hearing in the Busselton Magistrates Court.
5.Costs of the appellant.
Whether the appellant should be given an extension of time within which to commence the appeal
As noted earlier, the appeal notice was filed out of time. The appellant's explanation is contained in her affidavit filed 11 March 2014 (par 36). It is to the effect that she mistook the date that the 'District Court's decision came in'. The appellant said that she had faxed unspecified 'appeal documents' to the Court of Appeal on 19 December 2013 (which was, in any event, at least one day out of time). She annexed to her affidavit a copy of a letter which she said she had sent to the 'Registry' on 19 December 2013. The appellant did not annex any copy notice of appeal or other documents which were purportedly sent under cover of the letter. Also, the copy letter refers to a facsimile number which is not the facsimile number of the Court of Appeal Office (see O 67 r 19(2) of the RSC and Practice Direction 1.2.2.14‑23).
Rule 29 of the Court of Appeal Rules permits the extension of time to bring an appeal. The principles in relation to an application to extend time in which to commence an appeal have been set out in Simonsen v Legge [2010] WASCA 238 [8]:
The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] WASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
We are not satisfied, in all the particular circumstances of this case, that leave to extend the time within which to appeal should be granted for the following reasons.
In relation to the appellant's prospects, apart from grounds 10, 12 and 13, none of the grounds of appeal seek to deal with the primary judge's reasoning and findings referred to in [14] ‑ [15] above. Grounds 10, 12 and 13 are at least arguably to the effect that the judge failed to recognise that, for the purposes of s 43(3), the appellant's case raised serious allegations of family and domestic violence.
The complaint that the judge did not deal fully with the appellant's appeal, including her arguments as to the operation of the doctrine of res judicata, overlooks the fact that his Honour was dealing, relevantly, with an interlocutory application to strike out the appeal upon the basis of s 43(3) of the Magistrates Court (Civil Proceedings) Act. The 'submissions' which were part of the document described as the 'appellant's case' include a number of complaints about the judge's recitation of the background history of the matter, none of which appear to be material to the appellant's grounds of appeal. The submissions do not 'clearly' and 'succinctly' (pt 5 r 32(5) of the Court of Appeal Rules) convey the substance of the grounds of appeal. The document described as the 'appellant's case' is not a document that could sensibly be used either by the respondent or by the court in any appeal and it does not comply with pt 5 r 32 of the Court of Appeal Rules. In any event, on the basis of the submissions provided in support of the grounds, none of the grounds, apart from grounds 10, 12 and 13, appear to us to have any reasonable prospect of succeeding.
Insofar as grounds 10, 12 and 13 emphasise the importance of dealing with domestic violence, the submissions most directly in support appear to be contained in pars (l), (cc) and (dd) of the appellant's submissions in the appellant's case. The appellant contends that his Honour erred in finding in effect that by October 2013, the original grounds for obtaining the 2012 interim VRO were 'stale' and 'sufficiently minor' so as not to justify the costs of the appeal [18]. The appellant submits:
Incorrect. Domestic and family violence is never minor. The VRO is not a stale ground at all. There have been further ongoing incidents since the strike‑out application.
It is sufficient to proceed, for present purposes, on the basis that it is arguable that the judge erred by, in effect, understating the degree of 'domestic and family violence' evidenced by the 'blocked number' telephone calls, the alleged verbal abuse of the appellant from the respondent in the call she answered, and the failure to take into account incidents which allegedly occurred after July 2012. It is sufficient to proceed on that basis because the question of whether it is in the interests of justice to grant the appellant leave to file the appeal out of time raises other issues to which we now turn.
Even if the appeal had arguable merit, the relief sought by the appellant is to the effect that the interim orders of July 2012 be reinstated with a view to there being a final hearing of the appellant's application of 11 July 2012 in the Busselton Magistrates Court, and a rehearing of the respondent's strike‑out application. That is not the relief which this court could give even if the appeal succeeded. This court could at most set aside the decision to strike out the appellant's appeal to the District Court. That would still leave the appellant's appeal to the District Court to be determined. That would entail, no doubt, further delay and, possibly, a further appeal to this court by the unsuccessful party on the District Court appeal.
Also, in relation to the fresh complaints of the appellant arising from events since July 2012, a relatively quick and cheap means of vindicating those complaints would be to make an appropriate application in respect of those particular matters. On the other hand, the 'appellant's case' could not stand in its present form and even if the court granted all appropriate indulgences and allowed the appellant to amend or substitute the 'appellant's case' so as to comply with the relevant Court of Appeal Rules, it is difficult to foresee, in this particular matter, that the appeal would be ready for hearing before 2015. These factors also weigh against the appellant in relation to the question of whether it would be in the overall interests of justice for the appellant to be granted leave to appeal out of time.
The length of the delay, although not great, is nevertheless not minimal. The appellant's stated reasons for not filing an appeal notice on time are unsatisfactory for a legal practitioner. Even though the appellant is unfamiliar with the appeal process in the Supreme Court, it is difficult to accept that, objectively, there was any real impediment to her filing a notice of appeal within time. It is a single page standard‑form document which essentially required her to complete the details of the proceedings below, the decision appealed from and the appellant's details for service.
Also, the respondent has a vested right to the judgment. It may be accepted that the stress of continued litigation is not insignificant: Ketteman v Hansel Properties Ltd [1987] AC 189, 220; The Commonwealth v Verwayen (1990) 170 CLR 394, 464 ‑ 465, 482.
In conclusion, independently of the merits of the appellant's appeal and although the matters raised by the appellant are plainly matters of great significance to her, it is important to emphasise the consequences of any successful appeal to this court. The need to emphasise the consequences of a successful appeal to this court arises because in both written submissions (par (k)) and oral submissions in this court, the appellant explained that she wanted orders on her appeal for her application for a VRO to be heard by a magistrate. This court could not make those orders on her appeal. If the appellant were successful in her appeal to this court then the interlocutory order in the District court would be quashed and the matter sent back to the District Court for a hearing of the appellant's appeal to that court.
In other words, before the appellant could achieve her objective of a hearing before a magistrate for a VRO, the following would need to occur:
(a)the appellant would need to succeed in her appeal to this court requiring the District Court to hear the merits of her grounds of appeal set out in [11] above. Although the orders of the District Court judge were confined to s 43(3) of the Magistrates Court (Civil Proceedings) Act, his Honour's reasons for decision also relied on the lack of reasonable prospects of success of those grounds of appeal (see s 43(4)(b) of the Magistrates Court (Civil Proceedings) Act. The potential for success of those particular grounds may also be an issue on an appeal to this court which might be a further hurdle for the appellant to overcome; and
(b)the appellant would need to be successful in the District Court merits appeal and any appeal from that decision.
In contrast, as the primary judge observed in the District Court, and as we would reiterate, there is and has been no impediment to the appellant seeking a fresh violence restraining order in Western Australia or the equivalent in South Australia, particularly in relation to any events since July 2012 (about which there were a number of allegations in her affidavit evidence in this court and in the District Court).
For these reasons, the appeal should be dismissed on the basis that it was not commenced within time and the appellant's application to extend the time should be refused. It is, in the circumstances, unnecessary to deal with any of the other matters the subject of the registrar's notice dated 16 May 2014, or the order dated 30 May 2014.
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