MTI v SUL

Case [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).

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

Background

  1. The following history is taken from the respondent's supporting affidavit (which was not contested by the appellant) and the records of this court.

  2. 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.

  3. 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.…

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MTI v SUL [2011] WASCA 267
Case
[2011] WASCA 267
Decision Date

CaseChat Overview and Summary

In the appeal, MTI (the appellant) appealed against a decision made by SUL (the respondent). MTI sought to challenge the decision on appeal, but the respondent moved to have the grounds of appeal struck out. The application was heard in the Court of Appeal. The legal issues the court needed to decide related to the sufficiency of the grounds of appeal, the respondent's entitlement to costs, and whether the court had jurisdiction to hear an application under the Vexatious Proceedings Restriction Act 2002 (WA).

The court held that the grounds of appeal were insufficient as they failed to assert alleged errors in the decision below and did not comply with the relevant rules. The court noted that while the appellant was self-represented, there was still a limit to the allowances that could be made. The court also held that it did not have jurisdiction to hear an application under the Vexatious Proceedings Restriction Act. The court allowed the appeal against the decision below to proceed, but only after the appellant had an opportunity to file amended grounds of appeal. The court found that the respondent was not wholly successful in her application and that the primary objective of the application was to have the grounds of appeal struck out. However, the court also found that the substantive purpose of the application was the order sought under the Vexatious Proceedings Restriction Act, and that the respondent was entitled to an order for the costs of the application. The court did not make an order that the appellant not be at liberty to proceed with the appeal until those costs were paid.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 15 September 2011, the respondent applied to have the grounds of appeal struck out on the basis that none of the grounds had any reasonable prospect of success and, further, that they were scandalous and vexatious and an abuse of process. The respondent also sought security for costs and an order, pursuant to the Vexatious Proceedings Restriction Act 2002 (WA), that the appellant be restrained from commencing any further proceedings against the respondent without the leave of the court. In a judgment delivered on 13 December 2011, we ordered that the grounds of appeal be struck out, but granted the appellant leave to file and serve an amended appellant's case containing amended grounds of appeal and submissions. The application for security for costs was adjourned sine die. The application under the Vexatious Proceedings Restriction Act was dismissed on the ground that this court had no jurisdiction to hear such an application. The appellant sought an opportunity to make submissions on costs and, on 13 December 2011, it was ordered that written submissions be filed and served and that the question of costs be determined on the papers. The appellant filed submissions on 10 January 2012 and the respondent filed submissions in response on 27 January 2012. The appellant submits, in substance, that as the respondent was not wholly successful, she is not entitled to an order for costs. As we understand his submissions, the appellant argues that whilst the grounds of appeal were struck out, the appeal itself was not dismissed but he was given an opportunity to file amended grounds. Accordingly, the respondent's primary objective in attacking the grounds of appeal was not achieved. He further submits that the substantive purpose of the respondent's application was the order sought under the Vexatious Proceedings Restriction Act and he points out that by far the greater part of the affidavit in support of the respondent's application concerned that aspect of the matter. On that issue the respondent failed. The respondent submits that she was entirely successful on her application to have the grounds of appeal struck out, which was the main purpose of the application. The orders sought for security for costs and under the Vexatious Proceedings Restriction Act occupied very little hearing time. In relation to the application under that Act, the question of jurisdiction was raised at an early stage by the court and no substantive submissions were made on it by either party. The respondent says that she is entitled to an order for the costs of the application. The respondent also seeks an order that the appellant not be at liberty to proceed with the appeal until those costs are paid. That is based upon the affidavit evidence of the respondent's solicitor that the appellant has failed to satisfy any of the previous costs orders made against him in proceedings in this court. (The history of the appellant's appeals to this court is set out in MTI v SUL [2011] WASCA 267.)

Ratio Decidendi

Legal Principle Established

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