MTI v SUL - [2011] WASCA 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MTI -v- SUL [2011] WASCA 267

CORAM: NEWNES JA
MURPHY JA

HEARD: 25 NOVEMBER 2011

DELIVERED : 13 DECEMBER 2011

FILE NO/S: CACV 36 of 2011

BETWEEN: MTI
Appellant
AND
SUL
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MONCRIEFF J
File No  :PT 1025 of 2004

Catchwords:

Practice and procedure - Application to strike out grounds of appeal - Grounds fail to assert alleged errors in decision below - Need for grounds of appeal to comply with rules - Limit to allowances for self-represented appellant - Application under Vexatious Proceedings Restriction Act 2002 (WA) - No jurisdiction in Court of Appeal to hear application

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)
Supreme Court Act 1935 (WA), s 58
Vexatious Proceedings Restriction Act 2002 (WA), s 4

Result:

Grounds of appeal struck out

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms M M Wadsworth

Solicitors:

Appellant: In person
Respondent: Bannerman Solicitors

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

Avsar v Binning [2009] WASCA 219
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
I v L [2006] FCWA 141
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
MTI v SUL [2007] WASCA 56
MTI v SUL [2007] WASCA 57
MTI v SUL [2008] WASCA 116
MTI v SUL [2008] WASCA 261
MTI v SUL [2009] WASCA 70
MTI v SUL [No 2] [2007] WASCA 240
MTI v SUL [No 2] [2010] WASCA 58
MTI v SUL [No 3] [2008] WASCA 19
Shaw v The State of Western Australia [2007] WASCA 288
`1 JUDGMENT OF THE COURT: The appellant has appealed against an interlocutory decision of Moncrieff J in the Family Court of Western Australia. By an application filed on 15 September 2011, the respondent has applied for orders:
(1)striking out the grounds of appeal;
(2)for security for costs; and
(3)restraining the appellant from commencing further proceedings against the respondent without the leave of the court, pursuant to the Vexatious Proceedings Restriction Act 2002 (WA).

The application was supported by an affidavit of the respondent's solicitor, Ms Wadsworth, sworn on 14 September 2011.

Background

The following history is taken from the respondent's supporting affidavit (which was not contested by the appellant) and the records of this court.
The parties met in October 2001 and commenced living together in February 2003. They were married in an Islamic ceremony in August 2003. They separated on 7 February 2004. On 26 March 2004, a child of the relationship was born. The child currently resides with the respondent and has contact with the appellant at designated times.
Since the parties' separation, the appellant has filed a large number of applications in the Family Court, principally in relation to access and matters concerning the child's day‑to‑day care and accommodation. The appellant has also instituted a number of appeals to this court against decisions relating to those applications. The appellant has appeared in person throughout all those proceedings.
On 30 May 2006, a magistrate of the Family Court of Western Australia made parenting orders in relation to the child. The appellant appealed against that decision. On 9 October 2006, the appeal was struck out by the Chief Judge of the Family Court. The appellant filed an appeal notice in this court against his Honour's decision (the first appeal). The appellant failed to file his appellant's case within time and, on 11 December 2006, a registrar of this court extended the time within which he was to file it until 21 December 2006. The appellant failed to do so and, on 23 February 2007, Buss JA ordered that the appeal be dismissed unless the appellant's case was filed by 9 March 2007: MTI v SUL [2007] WASCA 57. As it turned out, the appellant failed to comply with that time limit, with the result that the appeal was dismissed with costs.
In the meantime, applications by both the respondent and the appellant for substantive parenting orders went to trial before Martin J in the Family Court on 20 and 21 November 2006.
On 20 December 2006, Martin J delivered her decision on the applications. Her Honour discharged all previous parenting orders in relation to the child and made a number of orders concerning custody and access. In substance, her Honour ordered that the child live with the respondent who was to have sole responsibility for the child's care, welfare and development; that the appellant have access according to a detailed regime which her Honour set out; and that both parties be restrained from removing the child from Australia without the prior written consent of the other party or the leave of the court. Her Honour further ordered that the appellant be restrained by injunction from instituting further proceedings without the leave of the court. Martin J published her reasons for decision on 28 December 2006: I v L [2006] FCWA 141.
The appellant appealed against those orders (the second appeal). On or about 16 January 2007, the appellant filed an interim application in the appeal, seeking leave to issue a subpoena. On 23 February 2007, Buss JA decided that the question of the subpoena should be left until after the appellant's case and the respondent's answer respectively had been filed and served: MTI v SUL [2007] WASCA 56.
The appellant filed his appellant's case in the second appeal on 7 May 2007.
On 3 May 2007, the appellant filed a further appeal (the third appeal). This was an appeal against orders of Martin J in the Family Court dealing with the hours which the appellant was to have the child.
The appellant filed his appellant's case in the third appeal on 14 June 2007.
On 18 June 2007, the respondent applied to strike out the second appeal on the ground that it had no prospect of success and, in the alternative, for security for costs. On 28 August 2007, the second appeal was dismissed with costs by a single judge of this court, pursuant to r 43(2)(f) and (g) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal had any reasonable prospect of succeeding: MTI v SUL [No 2] [2007] WASCA 240. The appellant sought a review of that decision. The review was dismissed on 5 February 2008. In addition, on that occasion the court dismissed the third appeal and it also dismissed a fourth appeal (against an order for costs made against him in the Family Court in the sum of $350) on the ground that the appellant had failed to comply with the rules of this court: MTI v SUL [No 3] [2008] WASCA 19.
On 31 December 2007, the appellant filed a further appeal (the fifth appeal) concerning the listing of an application for leave to commence proceedings to vary the parenting orders, which the appellant had filed in the Family Court. On 9 May 2008, the fifth appeal was dismissed: MTI v SUL [2008] WASCA 116.
In the meantime, on 18 March 2008 the appellant filed an appeal (the sixth appeal) against a decision of Martin J in the Family Court in which her Honour ordered that the application for leave to commence proceedings be adjourned. The sixth appeal was dismissed on 11 December 2008 on the ground that the appeal had no prospect of success: MTI v SUL [2008] WASCA 261.
On 16 February 2009, the appellant filed an appeal (the seventh appeal) alleging that the Family Court had changed the listing date of an application in that court without notification to him. The seventh appeal was dismissed on the ground that it did not have reasonable prospects of success: MTI v SUL [2009] WASCA 70.
In the meantime, on 18 August 2008, the appellant had filed an appeal (the eighth appeal) against the dismissal, on 30 July 2008, of his application to the Family Court for leave to commence proceedings to vary the parenting orders. The appeal was upheld and the order dismissing the application was set aside: MTI v SUL[No 2] [2010] WASCA 58.
On 15 and 16 March 2011, the application by the appellant to vary the parenting orders came on for substantive hearing in the Family Court before Moncrieff J. (It appears that the application for leave to bring those proceedings was not opposed by the respondent.) On 16 March 2011, the application was adjourned part‑heard at the completion of the appellant's case. Moncrieff J indicated that he wanted to hear further evidence, including from the child expert who had been appointed in the proceedings by order of the Family Court on 13 May 2008.
On 22 March 2011, the appellant filed the current appeal (the ninth appeal) against, among other things, the order of Moncrieff J to adjourn the hearing. The appeal notice was not served on the respondent. At a directions hearing before a single judge of this court on 16 May 2011, the appellant explained that that was because he did not think the respondent wished to participate in appeals to this court. Having been informed that the appeal was not commenced until the appeal notice was served, on 19 May 2011 the appellant filed an application for an extension of time to file and serve the appeal notice. It appears the appeal notice was served on or about that date.
At a directions hearing on 8 July 2011, the appellant was ordered to file and serve his appellant's case on or before 15 July 2011. By the time of the resumed directions hearing on 5 August 2011, the appellant's case had not been filed. The time for it to be filed was extended to 19 August 2011 and the appellant was ordered to pay the respondent's costs of the appearance that day. On 12 August 2011, the appellant sought a review by the Court of Appeal of the order that he pay the respondent's costs, that order having been made by a single judge of the court. That review is still to be determined.
The appellant's case was ultimately filed on 19 August 2011.

The respondent's application to dismiss the appeal

The respondent has applied for an order striking out the grounds of appeal in the ninth appeal on the basis that none of the grounds has any reasonable prospect of success and, further, that they are scandalous and vexatious and an abuse of process.
We will not set out the grounds of appeal. Several of them are couched in terms which are intemperate and offensive. Suffice it to say that it is clear the grounds of appeal do not comply with r 32(4) of the Court of Appeal Rules. The grounds are not sufficiently directed to identifying the errors the primary judge is alleged to have made but are more in the nature of general complaints about what has occurred in the course of the proceedings below. That is not adequate. It cannot be left to the respondent and the court to attempt to infer from such complaints the errors which the appellant contends were made by the primary judge. The specific errors relied upon must be expressly identified.
This court has pointed out on a number of occasions that the requirements as to grounds of appeal are not simply a matter of form. As Owen JA (Miller and Newnes JJA agreeing) noted in Avsar v Binning [2009] WASCA 219 [37], on an appeal to this court an appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders sought. The grounds of appeal are a critical part of the process because they are the vehicle which guides the review process.
It is the case that that does not always require an inflexible application of the rules and it is accepted that where a party is unrepresented some allowance may need to be made in that regard. A court should always be alert to the possibility that beneath inadequately expressed and sometimes irrelevant material there may lurk an arguable case, so that it will often be appropriate to allow a litigant in person some leniency in relation to compliance with the rules. But in the end the allowances that can be made are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
The requirements of r 32(4) of the Court of Appeal Rules are directed to ensuring that the grounds of appeal sufficiently identify the specific error or errors which are alleged to entitle the appellant to the relief sought. Where the grounds of appeal reflect no or insufficient regard to the requirements of the rules the inadequacy of the grounds is inevitable. Such is the case here. As the grounds of appeal do not adequately identify the specific error or errors upon which the appellant relies, the appeal cannot proceed with the grounds in their current form. On that basis, the respondent's application must succeed.
We would add that the appellant's written submissions in his appellant's case do nothing to clarify the basis upon which the appellant seeks to make out his case on appeal. In effect, the submissions simply repeat some (but not all) of the grounds of appeal. Much that is contained in the submissions relates to past complaints of the appellant in relation to other proceedings in the Family Court and, to some extent, appeals to this court. Again, the submissions repeat the same sort of intemperate and offensive allegations that the appellant has made in some of the grounds of appeal.
There are two further matters. While it is not easy to discern from the grounds of appeal what specific errors the appellant alleges were made by the primary judge, sifting through the grounds of appeal it would seem that the appellant's contentions include that:
(a)the primary judge erred in adjourning the hearing to allow evidence to be given by the appointed child expert, who was then unavailable, and that his Honour should have appointed another child expert and continued the hearing; and
(b)the appellant has a reasonable apprehension that the primary judge is biased against him.
The appellant seeks, in effect, orders:
(a)setting aside the appointment of the child expert and appointing a different child expert; and
(b)directing that the case be heard by a different judge or an interstate judge.
If we have correctly understood the case the appellant seeks to make out on appeal, there is an obvious difficulty with a ground of appeal asserting that the primary judge erred in adjourning the hearing of the application. Whatever the merits of that contention (a matter which it is impossible to assess on the material currently before this court), the adjournment has been granted and obviously cannot be undone. An appeal on that ground can serve no useful purpose.
The second matter relates to what we understand to be the grounds of appeal which allege that the appellant has a reasonable apprehension of bias on the part of the primary judge. On that basis, the appellant seeks an order that the substantive application in the Family Court be heard by a different judge. As we have mentioned, the substantive application is currently adjourned part‑heard. It has already occupied one full day of hearing and part of a second day.
Once again making what we can of the grounds of appeal, it appears that the appellant alleges he has a reasonable apprehension that the primary judge is biased against him because, it is said, in the course of the hearing of the application on 15 and 16 March 2011, his Honour:
(i)unnecessarily interrupted the appellant's questioning of a witness and refused to allow proper questions to be asked of the witness by the appellant;
(ii)did not take action to stop the respondent signalling to a witness who was giving evidence the answers to questions asked of the witness by the appellant;
(iii)permitted the respondent's counsel to ask witnesses improper questions and to ask questions that his Honour had not permitted the appellant to ask;
(iv)permitted the respondent's solicitor to remove court documents from the court to photocopy them, in breach of the rules of court;
(v)asked the appellant irrelevant questions, including questions about the appellant's culture;
(vi)refused to adjourn the hearing to a date convenient to the appellant; and
(vii)disregarded uncontested evidence from a previous hearing involving the same parties.
On the hearing before us, the appellant acknowledged that at the hearing he did not ask the primary judge to disqualify himself on the ground of apprehended bias. The parties believed, however, that the appellant had made such an application late in 2010, although neither could recall the actual details of it. In fact, the records of the Family Court disclose that, on 20 December 2010, the appellant filed an application for an interstate judge to be appointed to hear the matter, apparently on the basis of a contention by the appellant that all of the judges of the Family Court in this State are corrupt. The primary judge refused the application. It is sufficient to say that the present appeal is clearly not brought against that decision. The grounds of appeal relate to matters alleged to have occurred at the hearing in March 2011.
If the appellant had applied to the primary judge to disqualify himself by reason of what is alleged to have occurred in the course of the hearing in March 2011 and that application had been refused by the primary judge, it would have been open to the appellant to seek leave to appeal against that interlocutory decision: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 [82]. But no such application was made and there is no decision against which to seek leave to appeal.
We would strike out the grounds of appeal. In that event, the appellant sought an opportunity to file amended grounds of appeal. We would grant to the appellant leave to file and serve, within a time to be fixed, an amended appellant's case containing amended grounds of appeal and submissions, but on the basis that if the appellant does not do so within the time specified the appeal is dismissed.

The application for security for costs

The application for security for costs cannot proceed at this stage as it is not supported by appropriate affidavit evidence. In light of the decision we have reached on the application to strike out the grounds of appeal, the appropriate course is to adjourn the application sine die, on the basis that the respondent can apply for it to be relisted if the appeal proceeds. In that event, it will have to be supported by an affidavit.

The application under the Vexatious Proceedings Restriction Act

A threshold question which arises on this application is whether the Court of Appeal has jurisdiction to make an order under the Vexatious Proceedings Restriction Act. Section 4 of that Act provides:
(1)If a Court is satisfied that -
(a)a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b)it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders -
(c)an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d)an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
Proceedings for such an order may, with leave of the court, be made by a person against whom vexatious proceedings have been commenced: s 4(2)(c).
A 'Court' is defined in s 3 as meaning (relevantly) 'the Supreme Court, a Judge'.
The Supreme Court Act 1935 (WA) establishes a Supreme Court (s 6). Section 7(1) states that the exercise of the court's jurisdiction is divided between the General Division and the Court of Appeal. Section 7(4) states that the General Division exercises all of the jurisdiction of the Supreme Court other than the jurisdiction referred to in s 58(1). Section 58(1) of the Supreme Court Act states that the Court of Appeal shall have, and shall be deemed, since the coming into operation of the Act, always to have had jurisdiction to hear and determine the applications, appeals and other proceedings listed in subpars (a) to (m), none of which refer to proceedings under the Vexatious Proceedings Restriction Act. Section 58(1)(m) confers jurisdiction on the Court of Appeal to hear:
[A]ll causes and matters and proceedings which:
(a)by any Act of this State, or the rules of court; or
(b)by or under any Imperial Act, or Act of the Commonwealth of Australia
are required to be heard and determined by the Court of Appeal.

As Pullin JA (with whom Beech AJA agreed) pointed out in Shaw v The State of Western Australia [2007] WASCA 288 [9] ‑ [10] (in the context of an application under s 6 for leave to commence proceedings), no provision of the Vexatious Proceedings Restriction Act, or of any other Act or any rule of court, requires an application for leave under that Act to be heard by the Court of Appeal.
It follows, in our view, that the Court of Appeal does not have jurisdiction to entertain an application under that Act. In those circumstances, it is inappropriate to make any comment on the substantive merits of the application.
The respondent's application must be dismissed.

Conclusion

We would:
(1)strike out the grounds of appeal;
(2)grant leave to the appellant to file and serve an amended appellant's case containing amended grounds of appeal and submissions, within a time to be fixed;
(3)order that if the appellant does not file and serve such an amended appellant's case within the time specified, the appeal is dismissed and the appellant is to pay the respondent's costs of the appeal to be taxed;
(4)adjourn the respondent's application for security for costs sine die; and
(5)dismiss the respondent's application under the Vexatious Proceedings Restriction Act.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MTI -v- SUL [2011] WASCA 267 (S)

CORAM: NEWNES JA
MURPHY JA

HEARD: 25 NOVEMBER 2011; ON THE PAPERS