JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MTI -v- SUL [No 3] [2012] WASCA 145
CORAM: PULLIN JA
MURPHY JA
HEARD: 19 JUNE 2012
DELIVERED : 6 AUGUST 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 by respondent to dismiss the appeal - Whether any grounds of appeal have any reasonable prospect of succeeding
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Respondent's application to dismiss the appeal upheld
Appellant's application for extension of time in which to appeal dismissed
Appeal 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):
Bloch v Bloch (1981) 180 CLR 390
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Maxwell v Keun [1928] 1 KB 645
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
MTI v SUL [No 2] [2007] WASCA 240
MTI v SUL [No 2] [2010] WASCA 58
MTI v SUL [No 2] [2012] WASCA 87
MTI v SUL [No 3] [2008] WASCA 19
REASONS OF THE COURT: This is an application by the respondent for an order under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) dismissing the appeal on the basis that none of the grounds of appeal have any reasonable prospect of succeeding, are scandalous, frivolous or vexatious, do not disclose any error in fact or law and are an abuse of process. The appellant also requires an extension of time in which to appeal. None of the grounds have any reasonable prospect of succeeding and some are scandalous with the result that an extension of time in which to appeal should be refused and the appeal should be dismissed. The reasons follow.
According to the appellant's appeal notice, the appeal is against orders made by Moncrieff J on 16 March 2011. The orders made on that day were:
1That the proceedings are to be adjourned part heard before the Honourable Justice Moncrieff.
2That within 14 days the applicant father, [MTI], file and serve a Form 1 Application.
3That before the resumption of the hearing the father either pay, or have waived, hearing fees for a four day trial.
4That within 14 days of service of the father's Form 1 the respondent mother, [SUL], file and serve a Form 1A Response.
5That during adjournment parties are to attend on Professor George Lipton in compliance with the orders…
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- AGLC
- MTI v SUL (No 3) [2012] WASCA 145
- Case
- [2012] WASCA 145
- Decision Date
CaseChat Overview and Summary
In addressing the issue, the court assessed the strength and merits of each ground of appeal advanced by MTI. It considered the legal and factual basis of the arguments, the weight of the evidence, and the likelihood of the appeal court finding in favour of MTI on the grounds raised. The court applied a rigorous standard in evaluating the prospects of success, requiring a significant likelihood of the appeal succeeding rather than a mere possibility. The court found that, while MTI had presented several grounds of appeal, none of them demonstrated a reasonable prospect of success. The arguments lacked sufficient merit to warrant the continuation of the appeal process.
Consequently, the court dismissed the appeal. The reasoning was that allowing the appeal to proceed would not serve the interests of justice, as there was no reasonable prospect that the appeal would result in a favourable outcome for MTI. The court noted that the grounds of appeal were either without merit or insufficiently substantiated to warrant further consideration. As a result, the appeal was dismissed and the earlier decision of the court remained in place.
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
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Ratio Decidendi
Legal Principle Established
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