Mubarak v Kelly

[2020] WASCA 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MUBARAK -v- KELLY [2020] WASCA 212

CORAM:   MURPHY JA

VAUGHAN JA

HEARD:   11 DECEMBER 2020

DELIVERED          :   11 DECEMBER 2020

PUBLISHED           :   14 DECEMBER 2020

FILE NO/S:   CACV 112 of 2020

BETWEEN:   KIDIMA MUBARAK

Appellant

AND

GEORGIA ROSE KELLY

First Respondent

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SHEPHERD DCJ

Citation: MUBARAK -v- KELLY [2020] WADC 136

File Number            :   CIV 3183 of 2018

Catchwords:

Appeal - Practice and procedure - Application by appellant to join legal representatives of second respondent as parties to the appeal - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 26A

Result:

Application dismissed

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	D R Clyne

Solicitors:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	HBA Legal

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

Currie v Currie [No 2] [2019] WASCA 2

Morrell v Mercantile Mutual Insurance (Australia) Ltd [1999] WASCA 250; (1999) 21 WAR 451

Mubarak v Kelly [2020] WADC 136

Seymour v Jaegar [2019] WASCA 19

REASONS OF THE COURT:

Introduction

1. On 11 December 2020, we heard the appellant's application in an appeal dated 12 November 2020 as filed on 13 November 2020. 

2. The appeal relates to a decision of Shepherd DCJ in Mubarak v Kelly[1] (primary decision).  Pursuant to the primary decision, the judge made certain procedural orders on 23 October 2020 including in relation to discovery and particulars.  The primary proceedings concerned a claim by the appellant in negligence in respect of a motor vehicle accident.

   [1] Mubarak v Kelly [2020] WADC 136.

3. The appellant's application dated 12 November 2020 sought to join five parties to the appeal who were not parties to the primary proceedings.  The parties that the appellant sought to join were counsel for the second defendant in the proceedings before Shepherd DCJ and four employees of the firm HBA Legal who acted for the second defendant in those proceedings. 

4. We dismissed the application and said we would provide written reasons.  These are our reasons.

Principles

1. In Morrell v Mercantile Mutual Insurance (Australia) Ltd,[2] the Full Court of the Supreme Court of Western Australia, being the predecessor of this court, observed that the court has power to join a party to an appeal who had not been a party involved in the trial in the primary proceedings.[3]

   [2] Morrell v Mercantile Mutual Insurance (Australia) Ltd [1999] WASCA 250; (1999) 21 WAR 451.

   [3] Morrell [11].

2. Part 5 r 26A of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides:

   26AParties to appeals

   (1)Each person who would be directly affected by the relief sought in an appeal must be made a respondent to the appeal.

   (2)In an appeal, the primary court must not be made a respondent unless the Court of Appeal orders otherwise.

   (3)A person cannot be made an appellant in an appeal without their consent.

   (4)Subject to subrule (3), the Court of Appeal may order that a person be added as a party and may order a party to be removed. 

3. In Currie v Currie [No 2],[4] this court summarised the principles relating to joinder, including that a person is entitled and required to be joined if that person's rights against, or liabilities to, any party to the action in respect of the subject matter of the action may be directly affected by an order which may be made.[5]

   [4] Currie v Currie [No 2] [2019] WASCA 2.

   [5] Currie v Currie[No 2] [236].

Disposition

1. This appeal is concerned, only, with whether Shepherd DCJ erred in making the procedural orders of 23 October 2020.  Even if the appellant were successful in the appeal, no order could properly be made by this court in the disposition of the appeal which would directly affect the rights and liabilities of any of the persons sought to be joined as a respondent.[6]

   [6] See Currie v Currie[No 2] [236]; Seymour v Jaegar [2019] WASCA 19 [26(3)].

2. Neither the appellant's affidavit filed 13 November 2020 nor the appellant's submissions provided any rational explanation in support of the application for joinder.  Accordingly, we dismissed the application.

Orders

1. The orders of the court were as follows:

   1.The appellant is to send a copy of the appeal notice to the first respondent by pre-paid ordinary post [to a particular address], on or before 4.00 pm 18 December 2020.

   2.The appellant is to file and serve an affidavit stating whether or not such notice has been sent in accordance with order 1, and if sent, stating whether the appellant has received notice that the envelope has been returned. That affidavit is to be filed and served on or before 4.00 pm on 22 January 2021.

   3.The time for the appellant to file and serve an appellant's case in the appeal is extended to 4.00 pm on 22 January 2021, and the appellant is to file and serve an appellant's case by then.

   4.The appellant's application filed 13 November 2020 is dismissed.

   5.Costs are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

GD
Research Orderly to the Honourable Justice Vaughan

14 DECEMBER 2020