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MTI v SUL (No 3)

MTI v SUL (No 3)

Case [2012] WASCA 145 6 August 2012

Appeal

Jurisdiction

Civil Litigation & Procedure

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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 [2007] WASCA 57
MTI v SUL [2008] WASCA 116
MTI v SUL [2008] WASCA 261
MTI v SUL [2009] WASCA 70
MTI v SUL [2011] WASCA 267
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MTI v SUL (No 3)

Details

AGLC: MTI v SUL (No 3) [2012] WASCA 145
Case: [2012] WASCA 145
Decision Date: 6 AUGUST 2012

CaseChat Overview and Summary

The proceedings in MTI v SUL (No 3) involved MTI, the appellant, and SUL, the respondent. The dispute arose from an earlier decision which was appealed by MTI. The respondent sought to have the appeal dismissed on the basis that it had no reasonable prospect of success. The matter was heard in the Supreme Court of Victoria. The central issue for the court to determine was whether the grounds of appeal advanced by MTI had any reasonable prospect of succeeding. This required a detailed examination of the arguments presented by MTI and an assessment of the likelihood of those arguments prevailing on appeal.

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