MTI v Sul - [2009] WASCA 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MTI -v- SUL [2009] WASCA 70

CORAM: PULLIN JA
NEWNES JA

HEARD: 6 MARCH 2009

DELIVERED : 3 APRIL 2009

FILE NO/S: CACV 19 of 2009

BETWEEN: MTI
Appellant
AND
SUL
Respondent

Catchwords:

Appeal - Practice and procedure - Appeal against adjournment of application - Appeal futile - No reasonable prospect of success

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Nil

JUDGMENT OF THE COURT: This appeal was listed in order to call on the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal have a reasonable prospect of succeeding. An appeal may be dismissed on that basis. See r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005.
The appeal notice filed by the appellant on 16 February 2009 identifies the decision appealed against as 'court dicsion [sic] to relist the case from 16 February 2009 to 18 February 2009'.
It appears that a Form 2 application filed by one of the parties was listed for hearing in the Family Court of Western Australia on 4 February 2009, and on that day an order was made inter alia that:
The Form 2 application filed on 27 January 2009 and Form 2A response filed on 30 January 2009 be adjourned to 16 February 2009 at 9.30 am before the Honourable Justice Martin.
The appellant says that on 13 February 2009 he spoke to a secretary in the respondent's solicitor's office and was told that 'someone had contacted her from the court' and that the application was listed on 18 February 2009, not 16 February 2009. The appellant said that he then went to the Family Court, but court staff told him it was listed for hearing on 16 February 2009. The appellant says that he came to court on 16 February 2009, and he saw the printed court list showing that the case was listed at 9.30 am on that morning. However, when he went to the court where the hearing was supposed to take place, the court was locked and the other party did not appear. The appellant checked the court list and saw that it was listed at 9.30 am. The appellant says that he sat near the court and waited until 9.35 am, but the court remained locked and the respondent's solicitor never appeared.
On 17 February 2009, the appellant and the respondent's solicitor agreed to adjourn the hearing listed for 18 February 2009. They agreed to adjourn it without a date being fixed. The appellant says that he and the respondent's solicitors are discussing a proposed resolution of the adjourned application.
After complaining to court officials about what happened on 16 February 2009, the appellant says that he subsequently received a letter from the Principal…

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 MTI v Sul

Details

AGLC: MTI v Sul [2009] WASCA 70
Case: [2009] WASCA 70
Decision Date: 3 APRIL 2009

CaseChat Overview and Summary

In the matter of MTI v Sul, the appellant sought to appeal against the adjournment of an application in the Family Court of Western Australia. The court was asked to determine whether the appeal was futile, as none of the grounds had a reasonable prospect of success. The appellant argued that there was a mix-up regarding the listing date of the application, which was initially set for 16 February 2009 but was then changed to 18 February 2009. The appellant claimed to have been misinformed about the new date and subsequently attended court on 16 February 2009 only to find that the court was locked and the hearing had not commenced.

The court considered the grounds of appeal and found that the appellant had failed to demonstrate that any of them had a reasonable prospect of success. The court noted that the appellant had been informed of the change in date on multiple occasions, both by the Court Officer and through a meeting with the respondent's solicitor, but had allegedly failed to acknowledge this information. The court concluded that the appellant had not provided sufficient evidence to support his claims of misinformation and that, as a result, the appeal was likely to be unsuccessful.

The Supreme Court dismissed the appeal, finding that there was no reasonable prospect that any of the grounds would succeed. The court emphasised the importance of ensuring accurate communication regarding court listings and the responsibility of parties to verify such information. The appeal was dismissed, and no further orders were made.

Orders

Orders of the court

Appeal dismissed

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: This appeal was listed in order to call on the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal have a reasonable prospect of succeeding. An appeal may be dismissed on that basis. See r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005. The appeal notice filed by the appellant on 16 February 2009 identifies the decision appealed against as 'court dicsion [sic] to relist the case from 16 February 2009 to 18 February 2009'. It appears that a Form 2 application filed by one of the parties was listed for hearing in the Family Court of Western Australia on 4 February 2009, and on that day an order was made inter alia that:The Form 2 application filed on 27 January 2009 and Form 2A response filed on 30 January 2009 be adjourned to 16 February 2009 at 9.30 am before the Honourable Justice Martin. The appellant says that on 13 February 2009 he spoke to a secretary in the respondent's solicitor's office and was told that 'someone had contacted her from the court' and that the application was listed on 18 February 2009, not 16 February 2009. The appellant said that he then went to the Family Court, but court staff told him it was listed for hearing on 16 February 2009. The appellant says that he came to court on 16 February 2009, and he saw the printed court list showing that the case was listed at 9.30 am on that morning. However, when he went to the court where the hearing was supposed to take place, the court was locked and the other party did not appear. The appellant checked the court list and saw that it was listed at 9.30 am. The appellant says that he sat near the court and waited until 9.35 am, but the court remained locked and the respondent's solicitor never appeared. On 17 February 2009, the appellant and the respondent's solicitor agreed to adjourn the hearing listed for 18 February 2009. They agreed to adjourn it without a date being fixed. The appellant says that he and the respondent's solicitors are discussing a proposed resolution of the adjourned application. After complaining to court officials about what happened on 16 February 2009, the appellant says that he subsequently received a letter from the Principal Registrar of the Family Court of Western Australia about the adjournment on 16 February 2009. It reads:I refer to your letter dated 17 February 2009 and my telephone call to you on 20 February 2009. You advised of your attendance at the Court for a hearing on 16 February 2009 when you were informed the hearing had been changed to 18 February 2009.The Court Officer to the Honourable Justice Martin has advised he called your telephone number prior to 16 February 2009 to inform you of the change of hearing date to 18 February 2009 and he was not able to leave a message on the answering machine as it was full. He also advised me you acknowledged this with him when you attended the Court on 16 February 2009.The Court Officer has also advised me that you attended a meeting with the solicitor representing Ms Lee prior to 16 February 2009 and were informed of the change of date to 18 February 2009 at this meeting, and you also acknowledged this to the Court Officer on 16 February 2009.Thank you for bringing this matter to the attention of the court.

Ratio Decidendi

Legal Principle Established

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