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

1. 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.

2. 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'.

3. 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.

4. 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.

5. 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.

6. 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.

1. 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.

2. It is therefore not clear why the hearing did not go ahead on 16 February 2009, although it appears that it was a decision made by the court and without the agreement of the appellant.

3. The appellant contends that there has been another occasion where arrangements have been made without reference to him.  He refers to an earlier instance in 2008 when proceedings were listed before the Family Court in relation to disputes between these parties.  The appellant alleges an email was sent by the respondent's solicitors to the Associate to Justice Martin.  The appellant says that he found a copy of the email on the court file.  The email read:

   Hi Liz.  Just a little heads up that I'm getting a fax sent through asking if I can be allowed to attend next Tuesday by telephone.  Not sure how long faxes take to get through the system at the court, and given it's only a week away I thought I'd let you know in advance.  Unfortunately, Jeff Hewitt can't appear on Tuesday so I'd have to work out some sort of baby sitting for both my kids on Tuesday (the big one doesn't go to day care that day) which is always good for a challenge, so if MJ lets me attend by phone that would make my life a whole lot easier!  Of course, it's all about me … ha ha.

   My fax says please contact Jen from our office for my phone number, but if MJ says OK, you can just email me if you like and I'll send it on to you.

   Thanks Liz.  Hope all is going well with you in there and you're not getting too many Mr [I]s….

4. The appellant contends that the words 'permission given' were written underneath and claims that the initials appearing under those words were those of Justice Martin.  The email does not, of course, relate to the decision to adjourn on 16 February 2009.  All that needs be said about the email, if it is genuine, is that it provides evidence of the fact that people will send emails which contain material that they would never think of including in a formal letter.  The practitioner alleged to be the author has not had the opportunity to say whether she was or was not the author or why such an email was sent, but if it was the work of the alleged author then it is not an appropriate way to make submissions to a court.  However, the existence of this email does not advance the appellant's case in this appeal.  The point in this appeal is that the hearing on 16 February 2009 was adjourned without reference to the appellant.

5. The orders wanted in this appeal appear in the appellant's case, and they read:

   1.The judge to be disqualified from dealing with the matter or infusing any decision in the court relating to case 1025/04.

   2.The Supreme Court order the Western Australian police to investigate the judge for corruption.

   3.The hearing date on the 18/2/2009 to be vacated and another date to be listed within 28 days from the Supreme Court hearing of this appeal in accordance with the Family Court Rules.

6. These orders stray well outside what could be achieved on the appeal.  The appeal notice only concerns the decision to adjourn the hearing on 16 February 2009 to 18 February 2009.  Events have made the appeal proceedings otiose.  Clearly, the court could not order that the application proceed on 16 February 2009.  The third order sought is that the hearing date on 18 February 'be vacated'.  That is not an order which could be made and, in any event, the appellant's evidence given to this court on 6 March 2009 was that the parties agreed to adjourn the hearing on 18 February 2009 to a date to be fixed.  The other orders sought are beyond the power of this court and there is no foundation for the implication in proposed order 2.

7. Three of the appeal grounds contain irrelevant and scandalous material which should be struck out and not be repeated in these reasons.  However, one ground does contain the appellant's complaint about what happened on 16 February 2009.  It reads, 'The change of listing took place without the appellant's comment or agreement.'  The appellant is prima facie justified in complaining about the adjournment.  If the respondent had been heard there may have been another side to the events of 13 and 16 February 2009.  However, it is not necessary to ascertain whether there is any issue because events have moved on, and, because none of the orders sought could be made, the appeal is futile.  The ground quoted above does not have any reasonable prospect of success in that it could not result in the court making any of the orders sought.

8. The appeal must be dismissed.