MTI v SUL - [2009] WASCA 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MTI -v- SUL [2009] WASCA 69

CORAM: OWEN JA
PULLIN JA
BUSS JA

HEARD: 10 MARCH 2009

DELIVERED : 30 MARCH 2009

FILE NO/S: CACV 83 of 2008

BETWEEN: MTI
Appellant
AND
SUL
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MARTIN J
Citation  :I and L [2006] FCWA 141

Catchwords:

Courts and judges - Family Court of Western Australia - Court of Appeal - Whether order made by Family Court pursuant to s 242 of the Family Court Act 1997 (WA) requires appellant to obtain leave before appealing

Legislation:

Nil

Result:

Preliminary question answered in the negative

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms M M Wadsworth

Solicitors:

Appellant: In person
Respondent: Kott Gunning

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

Commissioner of Stamps v Telegraph Investments Co Pty Ltd (1995) 184 CLR 454
I and L [2006] FCWA 141
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260

JUDGMENT OF THE COURT: The appellant was the de facto partner of the respondent and orders were made by Martin J in the Family Court of Western Australia on 20 December 2006 concerning a child of the relationship. The orders were made in the exercise of the non‑federal jurisdiction of the court. One of the orders made on 20 December 2006, was order number 7 which read:
The applicant father be restrained by injunction from instituting further proceedings unless by leave of the Court, except pursuant to paragraph 6.
The applicant father is the appellant in these proceedings. Paragraph 6 of the orders related to matters which are not presently relevant. The reasons for Martin J making order number 7 will be referred to later in these reasons.
At various dates before 30 July 2008, the appellant sought a number of orders, all of which appear to be applications for leave as required by order number 7 of the trial judge's judgment. The applications for leave were all dismissed by Martin J on 30 July 2008 in the absence of the appellant. The appellant has instituted an appeal pursuant to s 211(3) of the Family Court Act 1997 (WA) against the 30 July 2008 orders.
The appellant has not served the respondent with the appeal notice and has in the past in other appeals, claimed that he does not have to effect service because he is required to first obtain leave before he can proceed with the appeal as a result of order number 7 mentioned above.
The registrar of this court issued a Registrar's Notice to Attend which read:
This matter has been listed to determine the following preliminary issue:
Does the order of Justice Martin, made in the Family Court on 20 December 2006 pursuant to s 242 of the Family Court Act 1997 (WA), that the appellant cannot commence proceedings without leave of the court apply to proceedings in the Court of Appeal.
This notice was issued by the registrar exercising her powers under r 47 and r 10(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) which authorises the making of an order to facilitate the appeal being conducted and concluded efficiently. It will facilitate the appeal and allow it to be conducted efficiently if the parties know whether the appellant does have to obtain leave before commencing the appeal.
The question whether or not leave is required and, if so, the identity of the appropriate court to deal with that issue, could affect the rights of the respondent. Accordingly, it was appropriate, indeed necessary, for the registrar to give to the solicitors on the record for the respondent the same notice of hearing as that sent to the appellant. The solicitor who appeared on behalf of the respondent advised the court that the respondent had exhausted her assignment of legal aid and that the solicitor was not in a position to advance substantive submissions on the leave issue.
Section 242(1) of the Family Court Act reads:
In proceedings under this Act the court hearing the proceedings may at any stage of the proceedings if it is satisfied that the proceedings are frivolous or vexatious …
(c)if the court thinks fit, on the application of a party to the proceedings, order that the person who instituted the proceedings cannot, without leave of the court or another court, institute proceedings under this Act of the kind or kinds specified in the order,
and an order made by the court under paragraph (c) has effect despite any other provision of this Act.
The reasons for making order number 7 on 20 December 2006 appear in Martin J's reasons in I and L [2006] FCWA 141 where her Honour said after setting out s 242(1):
I have outlined at some length the extensive number of applications brought by the father in these proceedings, which the mother says total some 15 applications in this child's short life. I have concluded that some of these applications are certainly vexatious. The mother's evidence is that the father has admitted 'trying on' applications in Court in the hope that he may achieve something. The applications have led to difficulties with the mother obtaining extensions of Legal Aid. Legal assistance is necessary for her since English is not her first language. I am satisfied that the father has placed unreasonable pressure on the mother by the number and nature of the applications and extent of the legal proceedings, and that now a defined parenting regime, to extend indefinitely, has been set in place, that he should not be permitted to commence further proceedings without leave of the Court. Obviously, this does not limit him in attempting to commence proceedings, but it does mean that the mother will not become involved in the proceedings unless the Court has given leave for further proceedings to be instituted [103].
The determination of the question posed by the registrar depends in this case on the proper construction of order number 7. Order number 7 restrains the appellant, relevantly, from 'instituting further proceedings unless by leave of the Court'. The order does not specify the court or courts in which 'further proceedings' may not be instituted without leave. It is plain, from the other orders made by Martin J on 20 December 2006 and the context in which order number 7 was made, that 'the Court', in the phrase 'leave of the Court', is the Family Court of Western Australia. However, the court or courts in which the appellant is restrained from instituting further proceedings must be determined by implication.
There are at least three possible implications. First, the appellant requires leave from the Family Court of Western Australia before instituting further proceedings in that court solely. Secondly, the appellant requires leave from the Family Court of Western Australia before instituting further proceedings in that court or the Magistrates Court (being a court with non‑federal jurisdiction below the Family Court of Western Australia in the relevant judicial hierarchy). Thirdly, the appellant requires leave from the Family Court of Western Australia before instituting further proceedings in any court exercising non‑federal jurisdiction within the relevant judicial hierarchy, including this court.
There is no reasonable basis for any implication that Martin J intended that the restraint on the institution of further proceedings imposed on the appellant by order number 7 should apply to appeals from decrees of the Family Court of Western Australia, made in its non‑federal jurisdiction, to this court under s 211(3) of the Family Court Act. That is, there is no reasonable basis for presuming that her Honour intended that the Family Court of Western Australia should regulate or filter appeals against its own decrees. In particular, it is unnecessary to consider whether s 242 can be construed in a way which would authorise that court to deny a party the right of appeal to this court which is expressly conferred by s 211(3) of the Family Court Act. Clear words would be required to confer that power: see Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286; Commissioner of Stamps v Telegraph Investments Co Pty Ltd (1995) 184 CLR 454 at 465.
The preliminary question is answered in the negative. Order number 7 of the orders made on 20 December 2006 does not apply to proceedings in the Court of Appeal.