MTI v SUL

[2007] WASCA 57

MTI -v- SUL [2007] WASCA 57

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 57
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:143/2006	Heard:	23 FEBRUARY 2007
Coram:	BUSS JA	Delivered:	22/02/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Orders given
Category:	B
PDF Version

Parties:	MTI SUL
Catchwords:	Practice and procedure Appeal Filing of appellant's case Turns on own facts
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 29(5), r 32(2)(b), r 43(2)(g)(ii)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MTI -v- SUL [2007] WASCA 57 CORAM : BUSS JA HEARD : 23 FEBRUARY 2007 DELIVERED : 23 FEBRUARY 2007 FILE NO/S : CACV 143 of 2006 BETWEEN : MTI

Appellant

AND

SUL
Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : HOLDEN CJ

File No : PT 1025 of 2004

Catchwords:

Practice and procedure - Appeal - Filing of appellant's case - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 29(5), r 32(2)(b), r 43(2)(g)(ii)

(Page 2)

Result:

Orders given

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):

Nil

(Page 3)

1 BUSS JA: The appellant is the father and the respondent is the mother of the child the subject of this appeal.

2 On 30 May 2006, a Magistrate made parenting orders in relation to the child. On 8 September 2006, the appellant filed in the Family Court of Western Australia a Form 20 Notice of Appeal, appealing against some of those orders. On 9 October 2006, the appeal was heard by the Honourable the Chief Judge of the Family Court of Western Australia, and the following orders were made:

(1) The appeal was struck from the list.

(2) The appellant was ordered to pay the costs of the respondent, fixed in the sum of $120.

3 On 27 October 2006, the appellant filed an appeal notice in this Court, appealing against the costs order made against him in the Family Court on 9 October 2006.

4 The appellant did not file a Form 3 Service Certificate (pursuant to r 29(5) of the Supreme Court (Court of Appeal) Rules 2005 (WA)), or an appellant's case (pursuant to r 32(2)(b)), within the times prescribed by the Rules, and the appeal was therefore listed for directions before the Court of Appeal Registrar on 11 December 2006. By letter dated 4 December 2006, the appellant was notified of this listing. The appellant did not attend the directions hearing before the Registrar. Nevertheless, the Registrar made the following orders, of which the appellant was notified by letter dated 11 December 2006:

(1) The time for the appellant to file and serve the appellant's case be extended to 21 December 2006.

(2) In the event that the appellant does not obey that order, the appeal be referred to a single Judge of Appeal to consider whether the appeal should be dismissed under r 43(2)(g)(ii).

5 The appellant's case has still not been filed.

6 I was informed by the appellant today that he did not receive the letter dated 11 December 2006 until on or about 22 December 2006. He also told me that he did not receive the letter dated 4 December 2006. The appellant said that he had changed his address and he had not filed or served a new address for service because he did not want the respondent

(Page 4)

to know his new address. According to the appellant, that explained the delay in his receiving the letter dated 11 December 2006 and his non-receipt of the letter dated 4 December 2006. It is, however, the appellant's responsibility to ensure that an appropriate address for service is filed to enable correspondence from the Court (and the respondent) to be received by him promptly.

7 I have decided not to dismiss the appeal today, but I consider it is appropriate, in the circumstances, that a springing order be made. Accordingly, I will order that the appeal be dismissed and the appellant pay the respondent's costs of the appeal to be taxed, unless the appellant's case is filed and served by 4 pm on 9 March 2007.