Peck v Peck - [2011] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PECK v PECK & ORS
[2011] SASCFC 63
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice David)
1 July 2011
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - EXCEPTIONS TO INDEFEASIBILITY - FRAUD OR FORGERY - AGAINST REGISTERED PROPRIETOR
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT
Appeal against decision of a single Judge of Supreme Court – transfer of property from second respondent to appellant and her husband – transfer lodged at LTO – second respondent unaware of transfer and had not signed any documents relating to it – finding by Trial Judge that transfer had been effected by the fraud of the appellant and was therefore void.
Notice of Appeal filed by appellant acting in person – no appearance by appellant at hearing of appeal – advice received that prior to hearing appellant deported from Australia – no immediate prospect of return to Australia – whether appeal should be adjourned to provide appellant with opportunity to make submissions – grounds of appeal incomplete and incomprehensible – failure to comply with SCR 282(2) – power of Court to dismiss appeal as a result of appellant’s failure to appear – whether appeal should be dismissed pursuant to SCR 12(2) for procedural irregularities – whether Court should summarily dismiss appeal pursuant to SCR 295(1)(h).
Held: There was ample evidence at trial to support the findings made by the Trial Judge – that evidence not contradicted by any evidence of the appellant who did not attend trial – appeal has no merit and should be dismissed – in that circumstance unnecessary for Court to invoke SCR 12(2) or SCR 295(1)(h) although if it had been necessary to do so grounds to dismiss under one or other of those rules established – application for adjournment refused – appeal dismissed.
Real Property Act 1886 (SA) s 64; Supreme Court Civil Rules 2006 (SA) SCR 295(1)(h), 12(2), 282(2), 234, 28 ; Supreme Court Act 1935 (SA) s 13, referred to.
Peck & Anor v Peck & Anor [2010] SASC; Edwards v Patterson (1987) 47 SASR 63, discussed.

PECK v PECK & ORS
[2011] SASCFC 63
Full Court: Nyland, White and David JJ

THE COURT:  This appeal was commenced by Monika Peck, who was the first defendant in an action instituted by the Public Trustee as the first plaintiff on behalf of Andrew Peck. On 16 March 2007 the Public Trustee was appointed by the Guardianship Board as the Administrator of Andrew Peck’s estate. The evidence before the Guardianship Board was that Andrew Peck had been diagnosed as suffering from “severe and disabling chronic schizoaffective disorder”.[1] Andrew had received compensation as a result of injuries received playing rugby and there was a concern by his family and the treating team about the protection of his assets.[2]
[1]    Statement of Reasons of Guardianship Board in relation to Andrew Peck dated 16 March 2007 at p 2.
[2]    Exhibit P12.
Jeremy Peck, who is Andrew’s brother, was the second plaintiff in the proceedings which related to a property situated at Hove, South Australia. Andrew and Jeremy were the owners as joint tenants of the Hove property which was transferred to them by their parents in about 1992. On 9 January 2006 in Austria, Andrew Peck married Monika, who is of Austrian nationality.
The Public Trustee commenced proceedings as a result of a Transfer,[3] which was registered at the Lands Titles Office, Adelaide, pursuant to which the legal estate or interest of Jeremy in the Hove property was transferred to Andrew and Monika as tenants in common in equal shares. Following the registration of that transfer, Monika held a one quarter interest in the property and Andrew a three-quarter interest as tenants in common. It was alleged that the Memorandum to effect that transfer had been prepared by Monika and had been executed without Jeremy’s knowledge or signature. At a later date a further transfer,[4] was presented to the Lands Titles Office which purported to transfer Andrew’s interest to Monika. The effect of that transfer, if registered, would have been that Monika would have become the sole registered owner of the property. However that transfer was rejected by the Lands Titles Office.
[3] Exhibit P3.
[4] Exhibit P6.
The Registrar-General was initially joined in the action as the second defendant as a result of an allegation that there had been a breach of duty of care and negligence by officers of the Lands Titles Office in the processing of the transfer.[5] That issue was not pursued at trial, but the Registrar-General continued to be represented in the proceedings, effectively as a friend of the court, having filed detailed submissions when the proceedings against him were current.
[5] Exhibit P3.
The situation with respect to Ms Peck’s representation was not straightforward. She did not file a defence in the proceedings and apparently did not take any part in the action until a few days before the date fixed for the trial. Counsel then appeared on her behalf on the day that the matter was listed for hearing, and applied for adjournment of the trial as she had briefed counsel who was not immediately available for the trial.
The Trial Judge eventually permitted a short adjournment to allow for Ms Peck’s legal representation to be resolved. At the same time he directed that Ms Peck could, if so advised, file an affidavit setting out all her involvement in the Memorandum of Transfer and associated documents involved at the registration at the Lands Titles Office and that the proposed affidavit could form the basis of Ms Peck’s evidence-in-chief at trial.
It appears that an affidavit was subsequently filed on Ms Peck’s behalf but was not admitted into evidence. In his reasons for judgment the Judge said,[6] that it was full of irrelevant material, although Ms Peck had attempted to explain some of the notations and alterations on the disputed Memorandum of Transfer. However, counsel for Ms Peck informed the Judge at the commencement of the resumed hearing that Ms Peck would not be attending Court under any circumstances. As Ms Peck was not available for cross-examination on the contents of her affidavit the Judge disallowed the use of any part of it for any purpose.
[6] At [22].
The trial then proceeded. The plaintiffs called evidence from Mr Peter Reilly and Mr Neville Lehmann, both officers of the Lands Titles Office. Each gave evidence as to what they had observed on the transfer document. Jeremy Peck also gave evidence and said that he had no involvement in the transfer and had never been told anything about it by either his brother or Monika Peck.
Counsel for Ms Peck subsequently called Andrew Peck to support Monika’s case. In the course of evidence Andrew said that he had had conversations with Jeremy about taking his name off the title. However the Judge found that was contrary to Jeremy’s evidence and he rejected it. The Judge said that he formed the impression from watching and listening to Andrew Peck that his evidence could not be relied upon.[7] He considered that some of his evidence did not make a lot of sense. He said Andrew appeared disinterested, vague and somewhat remote from the issues being litigated.
[7] At [48].
Andrew confirmed in cross-examination that he had signed as the transferor, knowing that Jeremy had not signed despite him being named as the transferor. However, the Judge considered that it was unlikely that Andrew had been a willing participant in a fraud, despite the fact that Andrew had said that he wanted his wife to have an interest in the property. The Judge said that he formed the impression Andrew was incapable of fully understanding the sequence of events that were being discussed and he seemed to be not focusing on the issue in court.[8]
[8] At [82].
The Judge found that [84]:
Monika Peck certified the transfer document and that certification was clearly inappropriate. It was dishonest. It had not been signed by Jeremy Peck. At best, it had been wrongly signed by Andrew Peck in two places, one for the transferor and one for the transferee, but Jeremy Peck was not involved and Monika Peck must have known that. She was the person involved in the preparation and submission of the document from the evidence of the Lands Titles Office representatives
The Judge found that [96]:
… it was Ms Peck who set out to transfer Jeremy’s half interest in the property as part of her overall plan to finally have the property solely in her name. She attempted, and succeeded, in divesting Jeremy of his joint interest without his knowledge or consent, without his signature, and without any consideration.
The Judge found that [97]:
…Andrew was not capable of understanding the consequences of signing the documents, if indeed he did sign them as he says.
The Judge found that Monika Peck had fraudulently transferred Jeremy’s interest in the property. The title, which was in the names of Monika and Andrew Peck for their respective interests was therefore defeasible. The Judge declared that the transfer had been effected by the fraud of Monika Peck and was therefore void. Pursuant to s 64 of the Real Property Act 1886 (SA) he directed the Registrar-General to cancel the registration and to issue a new original and duplicate Certificate of Title for the subject land in the name of Andrew and Jeremy as joint tenants.
On 8 September 2010 Ms Peck filed a Notice of Appeal (the first notice), which purported to be against the whole of the Judgment. The grounds of appeal set out therein are difficult to comprehend but include the comment “illogical”. There is a reference to Supreme Court Act 1935 (SA) s 13, (which concerns the salaries of judges and officers of the Court) and an allegation of bias. There are no particulars to support any of the matters set out in the Notice and the orders sought do not appear to have any relationship to the proceedings giving rise to the order which is the subject of this appeal.
On 7 October 2010 solicitors acting for the respondents to the appeal sent a letter to Ms Peck advising her that the notice was defective as it did not give sufficient or proper particulars of the grounds of the appeal, in particular:
1. The Notice alleges bias without giving particulars or the supporting affidavit required by the Supreme Court Rules.
1. The Notice seeks orders irrelevant to the matters determined in the action.
1. You appear to dispute findings made by the Trial Judge during the trial where you refused to attend and did not present a defence.
1. You have disputed costs on the basis of a misconception that it was open to your counsel to argue the question of costs after the order for costs had been made.
1. You address matters totally unrelated to the issues at trial.
6.You make some submissions which are unintelligible.
The solicitors advised Ms Peck that they proposed to make an application to the Court to have the appeal summarily dismissed as the Notice did not disclose any proper ground of appeal and had no prospect of success.
However, on the same day, ie 7 October 2010, Ms Peck filed an Amended Notice of Appeal (the second notice). The grounds set out therein are exactly as replicated below:
1.     The learned Judge made an error of law in his finding of fault in a material particular, in that contrary to his honour’s finding Jeremy Shawn Peck effected no transfer of my interest in the Land Titles Office or in the alternative: Andrew James Peck effected a lawful motion to the transferee
2.     There was no chance for the lawyer to argue the costs mentioned on the 15.9 infront of HH Karakis, due to the fact lawyer got it way too late via e-mail (just hours time and M Yules apparently said she got told by HH Anderson to e-mail that late).      A question of law needs to be brought on to the full court
3.      Jeromy Peck never transferred anything … so cannot be fraud
4.     The Registrar General was not effected by me
5.     Jeromy Peck was legally since more than a decade not required to be on the title, because he said so* evidence, but used that fact to commit a bank-fraud by getting a interest loan on his house he bought and would not have perhaps not even have been required to obtain a home-loan back than*evidence
6.     A question of law needs to be brought to the full court under Supreme Court Rules and can be done in the appeal. There is a conflict of the 1 st defendant that she is appointed as the Administrator viapreexisting, private and enduring Power of Attorney over her husband, who is used against the Powers of Attorney Act 85 as the applicant by someone who cannot vest the Preexisting powers, and can also not show any Supreme Court orders who are needed to have that power vested
7.     see6. Therefore it is in the public Interest required to sort out the difference between enduring power and power of Attorney, appointed in a private frame (not through a board)
8.     Under Supreme Court Act 35 Sec 22 equitable defences, see maritual rights, Enduring Powers, t
9.     Under SCA 35 Sec 25 b I have formerly been entitled to apply to the court upon equitable interest, what I have done in the past when HHJ Kelly grapped the case away from HHJ Gray nby closing the matter I applied for not to take SCA345 sec 27 into consideration, what caused say 80 additional court cases in Australia since by her error in law and being biased
10.     The court should have considered that SCA35 under Sec 35 that as the wife ( 1 st Dendant) of the disabled person, the disables person picks up the costs directly or indirectly and should have waived that costs under that act
11.     Error by not waiving application fee for the pensionist, as a proof of mismanagement of Public Trustee, if they ever could lawfully have managed the affairs of the applicant, by not accepting material to be filed by the first defendant via Master Whithers sans HHJ Anderson, the Registry cause brought to the attention see question of law needs to be put infront of full court
12.     Error in law to deprive maritual and cong. Rights between applicant and first defendant via court order and via acting by LTO representative
On 19 November 2010, solicitors for the respondent filed an application pursuant to Supreme Court Rule (“SCR”) 295(1)(h) for summary dismissal of the appeal instituted by the second Notice or, in the alternative, for an order that Ms Peck provide security for the respondent’s costs. That application came on for hearing before a Judge of this Court on 26 November 2010 and was subsequently adjourned. There were then further directions hearings relating to the listing of the appeal and the filing of case books. As we understand the matter, Ms Peck did not attend any of those hearings in person, nor was she represented by counsel. On 7 February 2011 an order was made that the respondents’ application to strike out the appeal be referred to the Full Court for hearing with the appeal.
On 21 February 2011 the matter came on for further hearing before a Judge of this Court at which time an order was made that the appeal books provided by Ms Peck be accepted by the Registry for filing, notwithstanding non-compliance with the Rules and Practice Directions and notwithstanding the absence of certification.
We understand that in the weeks leading up to and after the last order made referring to the application pursuant to SCR 295(1)(h) to the Full Court, Ms Peck forwarded a number of emails to the Court which indicated that she might soon be deported from Australia. On 16 May 2011, the Court received an email from Ms Peck as follows:-
From: Monika Peck [mailto:[email protected]]
Sent: Monday, May 16, 2011 10:57 PM
Subject: Re: Peck & Anor v Peck & Anor SCCIV-09-613
Good Day Miss Guy,
Unfortunately I need an order from that Court for reentry to be seen in the witnessbox in person...after that call over on the 20.5
i have asked what a call over means, Andi my husbnand will come around to that date....because i cant
i m still in contact with my austrian minister for foreign affairs, a friend of mine knows him pretty good, but he got up to be premier too at the moment to get the passport opened , if not now, than next time.So the ministeriom has my request, i doubt that DIAC will be a decent cooperation.
Pl tell me when and where it takes place on the 20.5
regards
Monic Peck
On 17 May 2011, an email reply was sent to Ms Peck from the Civil Registry of the Court in the following terms:-
Sent: Tuesday, 17 May 2011 8:46 AM
To: '[email protected]'
Subject: RE: Peck & Anor v Peck & Anor SCCIV-09-613
Dear Ms Peck
The Callover is a very short hearing to allocate a time and date for the actual Full Court Hearing.
However, please be advised that the Callover will no longer take place this Friday 20 May 2011.
The Registry will instead allocate the Full Court Hearing date and time administratively without conducting a Callover.
Registry will advise you shortly when the Full Court Hearing date has been set.
If you are seeking any orders from the Court you will need to file an Application and supporting Affidavit.
You should seek legal advice in relation to obtaining re-entry into the Country.
Regards

Supreme Court Civil Registry
Sir Samuel Way Building
Victoria Square, Adelaide SA
On 17 May 2011, Ms Peck replied:-
From: Monika Peck [mailto:[email protected]]
Sent: Tuesday, 17 May 2011 9:20 PM
To: CAA:PM Supreme Court Civil Registry (CAA)
Subject: Re: RE: Peck & Anor v Peck & Anor SCCIV-09-613
Thank you, i ll file that applications plus affadivit for the full Court than, as to get an order for reentry in addition to justice....might be set down via interloc application for another hearing before????
thank you i did seek legal advice, it ison the highest rank now to get me in that full Court in coop with my ministerium for foreign affairs.Who knows that in the meantime the SA Attorney General signes for a witness protection visa or criminal justice stay visa, as he and other parties got the attachments i hope it was easy to open, do i need to file that too in an affadivit to have it attached to the file?
Sincerely - M Peck
On 25 May 2011, the Appeals clerk of the Supreme Court Registry sent a further email to Ms Peck advising her that the appeal was listed for hearing in the Full Court on Tuesday 14 June 2011 at 10:15am.
On 3 June 2011, a further email was received from Ms Peck as follows:-
From: Monika Peck [mailto:[email protected]]
Sent: Friday, 3 June 2011 2:52 AM
To: CAA:PM Supreme Court Civil Registry (CAA)
Subject: Re: SCCIV-09-613 Andrew James PECK and Others v. Monika Elisabeth PECK and Ors
SINCERELY M PECK
P:S:MY HUSBAND WILL BE THERE;SHOULD DIAC KEEP BOCKING ME FROM REENTRY TO AUSTRAIA THAN.
> Datum: Wed, 1 Jun 2011 11:31:46 +093
> Von: "CAA:PM Supreme Court Civil Registry (CAA)"
> <[email protected]>
> An: "\'[email protected]\'" <[email protected]>
> Betreff: SCCIV-09-613 Andrew James PECK and Others v. Monika Elisabeth
> PECK and Ors
The appeal was called on for hearing before the Full Court at the appointed time, ie 10.15 am on 14 June 2011. Ms Peck did not appear either personally or by legal representative. Mr Meyer appeared as counsel for the respondents and Mr Mackintosh appeared as counsel for the Registrar-General. When Mr Meyer announced his appearance he indicated that he acted for both the Public Trustee as the first respondent, and Jeremy Peck as the second respondent. However there appeared to be a procedural irregularity as neither notice of appeal joined Jeremy Peck as a party to the appeal. Mr Meyer then indicated that he had instructions to act on behalf of Jeremy Peck with respect to the appeal and in that circumstance, the Court granted leave to amend the proceedings to join Jeremy Peck as a respondent to the appeal. The court then admitted an affidavit of Jennifer Anne Hill, sworn on 10 June 2011.[9] Attached to that affidavit is an advice from the Department of Immigration & Citizenship confirming that Ms Peck had been removed from Australia on 2 March 2011. Ms Hill made further enquiries with Mr Boch of the Austrian Embassy in Canberra, who advised that Ms Peck was living in Austria and was attempting to obtain a visa to return to Australia but she was having difficulty in obtaining same. It therefore appeared that Ms Peck had no prospects of returning to Australia in the near future.
[9] Exhibit R1.

Shortly before the appeal was called on for hearing, further email correspondence was received by the Court from Ms Peck. Much of it was confusing, offensive and irrelevant. Included in this correspondence was a document in the German language, which appeared to be a communication to Ms Peck from a Department in the Federal Ministry of European and International Affairs in Vienna in response to a number of emails forwarded by Ms Peck to that Department complaining of the lack of support she had received from the Austrian Embassy. This communication appears to include an advice as to conditions to be fulfilled for Ms Peck’s re-entry into Australia, which includes the requirement for a blocking period of 1 to 3 years to be lifted.
Ms Peck’s email which attached this document referred to the need for there to be an adjournment, possibly to have the German content document translated. However as a matter of fairness we treated the reference to the adjournment as an application to adjourn the hearing of the appeal and invited submissions from counsel as to that matter. Both counsel strenuously opposed any adjournment of the appeal. Thereafter each of them made submissions as to the disposition of the appeal in the absence of the appellant.
The primary submission was that the Court should dismiss the appeal pursuant to the provisions of SCR 12(2) which empowers the court to dismiss an action or proceeding (either on its own initiative or an application by a party) if a person commits a procedural irregularity. In this case, counsel relied on a number of procedural irregularities, such as the inadequacy of the Case Books provided to the Court, the failure of the appellant to appear to prosecute the appeal, the failure to demonstrate how the Judge was in error and the failure to provide grounds of appeal which complied with the provisions of SCR 282(2). That rule includes requirements for a Notice of Appeal to be in the approved form, for grounds of appeal to be set out in detail, as well as the inclusion of the orders sought by an appellant in the event of a successful appeal.
In the course of argument our attention was drawn to SCR 234 as well as the decision of the Full Court in Edwards v Patterson.[10]In that case the court discussed the procedure with respect to the dismissal of an action where a party has not attended. In that case, Jacobs ACJ said at [66]:
While of course the Court cannot, in general terms, look with much sympathy upon parties who do not obey the Rules of Court in one respect or another, or who absent themselves when they ought to be present, it is nevertheless a rare case in which such conduct is allowed to deprive a party entirely of his or her rights, more particularly if the other party can be compensated with costs.
[10] (1987) 47 SASR 63.
In our opinion, SCR 234 has no application to the present matter as it is concerned with the dismissal of an ‘action’ as opposed to an appeal which is excluded from the definition of an action by SCR 28. Edwards v Patterson was also concerned with the dismissal of an action as the result of a failure by a party to attend at a trial and therefore is not directly relevant to the circumstances of this case. Nevertheless the comments of Jacobs ACJ in that case provide some guidance as to the approach to be taken when a party fails to prosecute proceedings or fails to comply with the Rules of Court.
Counsel for the respondents further submitted that in addition to a dismissal pursuant to SCR 12(2) the appeal should be dismissed pursuant to the provisions of SCR 295(1)(h). That provides that the Court may summarily dismiss an appeal if it is obvious that it cannot succeed.
As to this latter matter Mr Mackintosh made detailed submissions which demonstrated that there was a substantial body of evidence which supported the decision of the Trial Judge. He referred to:
·the evidence of Jeremy Peck that he did not sign the Transfer and had not received the sum of $60,000 or any other consideration for the transfer of his interest and had no knowledge of the Transfer before the Public Trustee alerted him to its registration.
·        The evidence of Mr Reilly that:
o   two people (a male and female whom he believed to be Andrew and the appellant respectively) brought the Transfer into the LTO. At that time there was no “whiting out” on the Transfer. The male did not say anything during the course of the interview.
o   his belief that Jeremy’s name was written in the “Estate and Interest” panel (because Andrew’s name would not have been included in that particular panel if he was transferring his own interest).
o   his belief that only Andrew’s name was in the “Transferor” panel and that Jeremy’s name was not in that panel.
o   he believed Ms Peck’s name was in the “Transferee” panel so that Andrew’s interest had been transferred to Ms Peck.
o   he ascertained that a caveat had been lodged by the Public Trustee against Andrew’s interest and informed Ms Peck that the consent of the Public Trustee would be required before the Transfer could be registered.
o   he returned the Transfer to Ms Peck immediately.
o   he saw Ms Peck on or after 8 May 2007.
In addition, there was the evidence of Mr Lehmann that:
1.     He met Ms Peck on 18 May 2007 at which time she presented the Transfer to him for lodgement. That was no more than 10 days after Mr Reilly saw Ms Peck.
2.      By that time:
·Andrew’s name had been written in the “Estate and interest” panel;
·        Jeremy’s name had been written in the “Transferor” panel;
·        Andrew’s name had been added to the “Transferee” panel;
·Liquid paper had been used to obliterate text from the panels of the Transfer.
3.With Ms Peck’s agreement, he added the words “tenants in common” into the “Transferee” panel. No other alteration was made in his presence.
4.Ms Peck lodged the second Transfer dated 30 July 2007 in the LTO.[11] Andrew was named in the “Transferor” panel and Ms Peck in the “Transferee” panel. It was in an attempt to transfer Andrew’s interests to Ms Peck. It was “certified correct” by Ms Peck.
[11] Exhibit P6.
The only evidence called by Ms Peck at the trial was that of Andrew Peck. As earlier mentioned, Andrew admitted in evidence that he had written Jeremy’s name in the “Transferor” panel, that he had signed the Transfer as the transferor and he knew that Jeremy had not signed the document and he, ie Andrew, had signed the “Accepted by the Transferee” clause.
It is clear that there is ample evidence to support the findings made by the Trial Judge as none of the matters which were the subject of evidence by the respondents, was contradicted by any evidence from Ms Peck. Ground 11 in the second Notice might be interpreted as a complaint about the refusal to permit Ms Peck’s affidavit to be placed before the Court. However, as Ms Peck failed to attend Court and to make herself available for cross-examination, we consider the Trial Judge was correct in refusing to admit the affidavit into evidence.
An examination of the second Notice discloses that there are substantial irregularities which support an order for dismissal pursuant to SCR 12(2). None of the grounds set out in the second Notice, nor for that matter in the first Notice, comply with SCR 282(2). Ground 1 complains of an error of law made by the Judge without any particulars given as to that matter. Ground 2 refers to a hearing before another Judge of this Court subsequent to the date upon which judgment was given and is therefore irrelevant. Ground 3 is simply a statement that “Jeremy Peck never transferred anything … so cannot be fraud.” However the fact that Jeremy Peck did not execute the Transfer was the essential finding by the Trial Judge which resulted in his conclusion that the Transfer had been fraudulently executed. It is not clear what is claimed in Grounds 4 and 5. The remaining grounds primarily appear to be concerned with a complaint by Ms Peck about the appointment by the Guardianship Board of the Public Trustee as the administrator of Andrew Peck’s estate when she had an enduring power of attorney in her favour. That was a subject which appears to have been canvassed at the Guardianship Board hearing and is irrelevant to the issues which were determined in this trial.
In addition to the multiple irregularities identified with respect to the notice of appeal we are satisfied, for the reasons earlier set out, that this appeal has no reasonable prospect for success. In the circumstances it is not appropriate to adjourn the hearing of the appeal to provide the appellant with an opportunity to make submissions. The communications received from Ms Peck make it clear that she was aware of the date appointed for the hearing of the appeal, and although her absence may not have been of her own volition she does not appear to have made any attempt to arrange for anyone to represent her at the hearing of the appeal. Ms Peck has not provided any information as to the date upon which she is likely to return to the jurisdiction and on the information currently available there does not appear to be any immediate, if ever, prospect of that taking place. There has been no suggestion by Ms Peck in any of the correspondence that if granted an adjournment she would engage counsel to make submissions on her behalf.
Accordingly, we refuse the application for the adjournment of the appeal hearing. In view of the matters detailed above and in the interests of finality we propose to determine the appeal on the material currently before us. In our opinion the appeal has no merit and should be dismissed. This decision makes it unnecessary for the Court to invoke SCR 12(2) or SCR 295(1)(h). We indicate however that if it had been necessary to do so, we would have dismissed the appeal under one or other of these rules.
Counsel did not invite the Court to exercise its inherent powers to strike out proceedings which are fruitless or vexatious, and the conclusion reached above means that it has not been necessary to consider those powers.
Orders
The Orders of the Court are:
1. The application for adjournment of the hearing of the appeal is refused.
2. The appeal is dismissed.