MTI v SUL [No 2]

Case [2012] WASCA 87

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MTI -v- SUL [No 2] [2012] WASCA 87

CORAM:   NEWNES JA

MURPHY JA

HEARD:   23 MARCH 2012

DELIVERED          :   26 APRIL 2012

FILE NO/S:   CACV 36 of 2011

BETWEEN:   MTI

Appellant

AND

SUL
Respondent

ON APPEAL FROM:

Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA

Coram  :MONCRIEFF J

File No  :PT 1025 of 2004

Catchwords:

Practice and procedure - Application for judge to disqualify himself dismissed - No grounds for reasonable apprehension of bias shown - Application to hear appeal without appeal books dismissed - No reason shown for departure from usual practice of requiring appeal books - Leave to issue subpoena to Family Court refused

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms M M Wadsworth

Solicitors:

Appellant:     In person

Respondent:     Bannerman Solicitors

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

Bienstein v Bienstein [2003] HCA 7

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

MTI v SUL [2011] WASCA 267 (S)

Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

  1. JUDGMENT OF THE COURT:   The appellant has filed an application (the interim application) seeking certain interim relief in the appeal.  In order to explain the circumstances in which that occurred and to put the relief sought in the interim application in its proper context it is necessary to set out some of the background.

Background

  1. The appeal arises out of an application by the appellant in the Family Court of Western Australia to vary parenting orders previously made by that court in relation to the child of the former relationship between the appellant and the respondent.

  2. On 15 and 16 March 2011, the application to vary the parenting orders came on for hearing in the Family Court before Moncrieff J.  On 16 March 2011, the application was adjourned part‑heard at the completion of the appellant's case.  The primary judge indicated that he wanted to hear further evidence, including evidence from the child expert who had been appointed in the proceedings by an order of the Family Court on 13 May 2008.

  3. On 22 March 2011, the appellant filed this appeal against, among other things, the order of the primary judge to adjourn the hearing.  After considerable delay, the appellant's case was filed on 19 August 2011.  The respondent then brought an application to strike out the grounds of appeal on the basis that none of the grounds had any reasonable prospect of success and, further, that they were scandalous and vexatious and an abuse of process.

  4. That application was heard on 25 November 2011.  In a reserved decision delivered on 13 December 2011, this court ordered that the grounds of appeal be struck out.  The appellant was given leave to file and serve an amended appellant's case containing amended grounds of appeal and submissions on or before 24…

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AGLC
MTI v SUL [No 2] [2012] WASCA 87
Case
[2012] WASCA 87
Decision Date

CaseChat Overview and Summary

MTI, the appellant, filed an appeal against a decision of Moncrieff J in the Family Court of Western Australia. The appeal arose from an application by the appellant to vary parenting orders made in relation to the child of the former relationship between the appellant and SUL, the respondent. The Family Court hearing was adjourned part-heard on 16 March 2011, and the primary judge indicated that he wanted to hear further evidence, including evidence from the child expert appointed in the proceedings. The appellant subsequently filed an appeal against the order to adjourn the hearing. The respondent then brought an application to strike out the grounds of appeal, which was successful. The appellant was given leave to file and serve an amended appellant's case, which was subsequently filed. The appellant then filed an interim application seeking various orders, including leave to subpoena the Family Court of Western Australia for records and for the appeal to proceed or be heard based on a submission rather than an appeal book.

The primary legal issues in this case were whether the court had jurisdiction to consider the interim application, whether the appellant had demonstrated a reasonable apprehension of bias on the part of the primary judge, and whether the court should depart from the usual practice of requiring appeal books. Additionally, the court had to decide whether the appellant should be granted leave to issue a subpoena to the Family Court of Western Australia. The court considered the appellant's interim application, which sought various orders, including an order for the respondent's submission for costs of her last application to be dismissed or struck out. The court noted that the appellant had made a belated application to have an oral hearing on the question of costs, but the application was not entertained. The court also considered the appellant's application for the primary judge to disqualify himself, which was dismissed as no grounds for a reasonable apprehension of bias were shown. Furthermore, the court dismissed the application to hear the appeal without appeal books, as no reason was shown for departing from the usual practice of requiring appeal books. Finally, the court refused leave to issue a subpoena to the Family Court of Western Australia, as the appellant had not shown any reason for doing so.

In conclusion, the court dismissed the appellant's interim application and refused the various orders sought therein. The court found that the appellant had not demonstrated a reasonable apprehension of bias on the part of the primary judge and that there was no reason to depart from the usual practice of requiring appeal books. Furthermore, the court refused leave to issue a subpoena to the Family Court of Western Australia. The court's decision was based on the appellant's failure to demonstrate any grounds for the various orders sought in the interim application. The court's decision was final and binding, and no further appeals or applications were permitted without the leave of the court.

Orders

Orders of the court

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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: The appellant has filed an application (the interim application) seeking certain interim relief in the appeal. In order to explain the circumstances in which that occurred and to put the relief sought in the interim application in its proper context it is necessary to set out some of the background. The appeal arises out of an application by the appellant in the Family Court of Western Australia to vary parenting orders previously made by that court in relation to the child of the former relationship between the appellant and the respondent. On 15 and 16 March 2011, the application to vary the parenting orders came on for hearing in the Family Court before Moncrieff J. On 16 March 2011, the application was adjourned part‑heard at the completion of the appellant's case. The primary judge indicated that he wanted to hear further evidence, including evidence from the child expert who had been appointed in the proceedings by an order of the Family Court on 13 May 2008. On 22 March 2011, the appellant filed this appeal against, among other things, the order of the primary judge to adjourn the hearing. After considerable delay, the appellant's case was filed on 19 August 2011. The respondent then brought an application to strike out the grounds of appeal on the basis that none of the grounds had any reasonable prospect of success and, further, that they were scandalous and vexatious and an abuse of process. That application was heard on 25 November 2011. In a reserved decision delivered on 13 December 2011, this court ordered that the grounds of appeal be struck out. The appellant was given leave to file and serve an amended appellant's case containing amended grounds of appeal and submissions on or before 24 February 2012, failing which the appeal was dismissed. (An amended appellant's case was filed on 2 February 2012.) The appellant sought an opportunity to make submissions on the costs of the application and it was ordered (without objection by the appellant) that written submissions be filed and served and that the question of costs be determined on the papers. The appellant filed submissions on 10 January 2012 and the respondent filed submissions in response on 27 January 2012. On 3 February 2012, the appellant filed the interim application. In that application, he sought the following orders:1.The respondent submission for cost of her last application to be dismissed or struck out;2.A listed hearing to decide the cost matter;3.Leave for the appellant to subpoena the Family Court of Western Australia for records;4.The appeal proceeds or heard based on a submission not an appeal book. In an amended application filed on 6 March 2012, the appellant sought a further order, namely:5.The court orders be varied, the sentence stated 'ground of appeal to be dismissed' to be written off or varied to 'a new ground of appeal to be allowed to be lodged'. On 6 March 2012, we ordered that the appellant was to pay the respondent 80% of her costs of the application to strike out the grounds of appeal, save for the costs of an affidavit she had filed: MTI v SUL [2011] WASCA 267 (S). In our reasons for decision we noted that the appellant had made a belated application to have an oral hearing on the question of costs but said that the application would not be entertained, for reasons we set out: [9] ‑ [13].

Ratio Decidendi

Legal Principle Established

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