MTI v SUL
[2008] WASCA 116
•9 MAY 2008 (Delivered) 3 JUNE 2008 (Published)
MTI -v- SUL [2008] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 116 | |
| THE COURT OF APPEAL (WA) | 03/06/2008 | ||
| Case No: | CACV:164/2007 | 9 MAY 2008 | |
| Coram: | PULLIN JA NEWNES AJA | 9/05/08 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MTI SUL |
Catchwords: | Appeal Family law Whether reasonable prospect of success Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g) |
Case References: | MTI v SUL [No 3] [2008] WASCA 19 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MTI -v- SUL [2008] WASCA 116 CORAM : PULLIN JA
- NEWNES AJA
- Appellant
AND
SUL
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : PENNY J
File No : (P)PTW 1025 of 2004
Catchwords:
Appeal - Family law - Whether reasonable prospect of success - Turns on own facts
(Page 2)
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Kott Gunning
Case(s) referred to in judgment(s):
MTI v SUL [No 3] [2008] WASCA 19
(Page 3)
1 PULLIN JA: The application was originally dismissed and reasons delivered on 20 March 2008 after the appellant failed to appear on that date. On 3 April 2008 the matter was relisted and the Court of Appeal ordered that the order made on 20 March 2008 dismissing the appeal be set aside and that the matter be adjourned to 9 May. On 9 May it was ordered that the appeal be dismissed for these reasons.
2 The appellant filed an appeal notice on 28 December 2007 which asserted that 'Judge Penny refused to review or change the decision for listing period of an application of the 28 days instead of 66 days'.
3 The background is that on 19 November 2007 (according to the appellant and 29 November 2007 according to the court) the appellant filed a form 2 application in the Family Court seeking some changes to orders which had been made in the court earlier concerning a child of a relationship between the parties. It may be that these are the same orders that were the subject of an appeal which was dealt with in MTI v SUL [No 3] [2008] WASCA 19.
4 The appellant asked for the application to be listed within 28 days, but the matter was listed by the registrar for hearing on 24 January 2008. It seems that the appellant sought a review of the registrar's listing 'decision', and Penny J confirmed that the application would be heard on 24 January 2008. It is the 'decision' of Penny J that the appellant seeks to appeal against.
5 The appellant has been participating in the hearing of the application. It was heard on 24 January 2008, and information from the Family Court reveals that the matter was adjourned on 24 January 2008 to a later date to allow the respondent to be given notice. It was listed again on 30 January and then a further adjournment was granted until 17 March 2008. It was listed again on 21 April. On 30 January an independent children's lawyer was appointed.
6 The appellant has filed no service certificate in this court. The associate to a registrar of this court sent a facsimile to Kott Gunning, the solicitors acting for the respondent in the Family Court. Copies of the appeal notice were attached, along with the appellant's case, and Kott Gunning wrote to the associate asserting that they had not been served with the appeal notice and stating that they did not intend to take part in the appeal.
7 If the appellant had sought an extension of time, it would have been necessary to consider the usual matters which govern an application for an
(Page 4)
- extension of time, they being the length of the delay, the reasons for the delay, whether the appellant has an arguable case and any prejudice that might be suffered, and also to consider the merits of the appeal.
8 No application for an extension has been made, but the Court should nevertheless deal with the matter that was indicated would be dealt with on 20 March, which is whether or not the grounds have any reasonable prospect of success pursuant to Supreme Court (Court of Appeal) Rules 2005(WA), r 43(2)(g).
9 In this case, there must be considerable doubt about whether there was any judicial decision which may be the subject of an appeal. However, assuming that there was an order or judgment made by Penny J - or a decree, as they are called in the Family Court - it was an interlocutory decision and an interlocutory decision will not usually be disturbed unless it can be shown that, unless the decision is reversed, substantial injustice will be suffered by the appellant.
10 No such injustice can be shown in this case. Events have overtaken the decision. The matter has been heard and other events have transpired. No order could be made by this Court which would have any effect on the decision to hear the matter on 24 January 2008 or at some other time.
11 There is some other relief sought which is not related to these matters, which could not be granted on this appeal. The appeal has no reasonable prospects of success and the appeal should therefore be dismissed.
12 The appellant contended that he did not have to serve the respondent because he was only seeking leave to commence an appeal. This was a reference to the order made by Martin J in the Family Court in terms that:
The applicant father be restrained by injunction from instituting further proceedings unless by leave of the Court, except pursuant to paragraph 6 [paragraph 6 concerns removal of the child from the Commonwealth of Australia and holidays outside of the Perth metropolitan area].
13 There is a question about whether that order could restrict the appellant in this court but it is not necessary to determine the point because if leave of this court was necessary, it would not have been given in the circumstances set out above.
14 NEWNES AJA: I agree.
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