R v S - [2009] WASCA 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: R -v- S [2009] WASCA 11

CORAM: PULLIN JA
NEWNES AJA

HEARD: 3 NOVEMBER 2008

DELIVERED : 15 JANUARY 2009

FILE NO/S: FUL 82 of 2004

BETWEEN: R
Appellant
AND
S
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :THACKRAY AJ
Citation  :R v S [2004] FCWA 87
File No  :PT 4148 of 2002

Catchwords:

Appeal - Appeal notice not personally served on respondent - Service on respondent's former solicitors - Whether appeal on foot

Appeal - Noncompliance with Rules - Whether irregularity can be cured by O 2

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1

Result:

Order made setting aside present proceedings

Category: B

Representation:

Counsel:

Appellant: Mr G R Donaldson SC
Respondent: In person

Solicitors:

Appellant: No appearance
Respondent: No appearance

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

Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 309
CDJ v VAJ (1998) 197 CLR 172
John Pfeiffer v Rogerson (2000) 203 CLR 503
Kenneth Allison Ltd v AE Limehouse & Co (1992) 2 AC 105
Lady De La Pole v Dick (1885) 29 Ch D 351
Laurie v Carroll (1958) 98 CLR 310
Lawrence v Harrison (1658) Sty 426; 82 ER 833
Milera v Wilson (1980) 23 SASR 485
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

PULLIN JA: This appeal was called on by the registrar to consider whether the proceedings by way of appeal should be set aside pursuant to O2 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) due to the failure of the appellant to comply with O 63 r 3 and O9 r 1 and r 5 concerning service on the respondent of the notice of motion by way of appeal.
The background is as follows. The appellant father and the respondent mother were involved in a relationship which began in 1999 and ended, (according to the finding of Thackray AJ (as he then was)) in September 2001. A child of the relationship was born on 10 November 2000 and the dispute, and this appeal, concern the child.
The orders sought by the mother were that the child reside with her and that she be at liberty to relocate with the child to reside permanently in Denmark. The order sought by the appellant was that the child reside with him in Australia. Although neither party contended for another alternative, the judge did consider the third option, that is, whether the child should live with the mother on condition that she live in Australia. The judge made the orders sought by the mother, which orders are the subject of this appeal. The orders were made on 1 June 2004. Reasons were not published on that day. The orders were:
(a)The child … reside with the respondent mother.
(b)The respondent mother have sole responsibility for the day‑to‑day and long‑term care, welfare and development of [the child].
(c)The respondent mother be at liberty to relocate with [the child] to reside permanently in Denmark provided that she shall not depart from Australia earlier than 24 June 2004.
(d)Pending the departure of the respondent mother and [the child] for Denmark the applicant father have unsupervised contact with [the child] each second day …
Other orders were made, including orders that contact handover should be supervised; that the appellant have contact with the child in Denmark at his expense in 2005 and in each alternate year; that in 2006 and each alternate year thereafter the appellant have contact with the child in Perth at the mother's expense, provided that if the appellant had not exercised contact in the previous year then the appellant should meet one half of the cost of the airfare of the respondent and the child to travel from Denmark to Perth; that the appellant have contact with the child by telephone or webcam every 14 days and on birthdays, by regular letters and email and such additional contact as the appellant and the respondent agreed from time to time. There were other procedural orders.
The reasons for decision were published on 17 June 2004. The reasons were lengthy, but his Honour correctly directed himself that the best interests of the child were the paramount consideration, and considered and took into account guidelines to be considered in the case of a proposed relocation of a child and the matters made relevant by s 166 of the Family Court Act 1997 (WA). The appellant was represented by counsel at the hearing before Thackray AJ. Both the mother and the appellant gave evidence, and there was a conflict about numerous factual aspects relating to their relationship. There were other witnesses, one of whom was Ms D, a former neighbour. The trial judge carefully considered all of the evidence and explained, when making findings of fact, why he did so. His Honour found that the appellant was the perpetrator of serious physical, verbal and emotional violence in the relationship [157], [158] ‑ [175] of the reasons. At [205] his Honour also said that he regarded the appellant's evidence on material matters in issue to be fabricated and he generally preferred the evidence of the mother wherever there was a conflict. Nevertheless, his Honour said that he did not necessarily accept everything that the mother said and referred to aspects of the mother's evidence that he did not accept.
Ms D gave evidence, in effect, that the mother 'set up' the father [194]. His Honour rejected Ms D's evidence as 'generally unreliable, save to the extent it unwittingly corroborated the mother's own evidence about the extent of the violence she endured'. His Honour concluded that the best interests of the child favoured an order that the child reside with the mother, and taking into account all of the circumstances, including the family circumstances of the mother and the conduct of the appellant, decided that an appropriate order was that the mother be at liberty to relocate.
On 22 June 2004, the appellant filed a notice of motion by way of appeal in the Supreme Court. Details of that document will be referred to later. On the same day, 22 June 2004, the appellant made an application to the Family Court to stay the orders of Thackray AJ which he had made on 1 June 2004. The stay application was supported by an affidavit sworn by the appellant which exhibited the notice of motion by way of appeal which had been filed in the Supreme Court.
Also on 22 June 2004, the appellant attended at the office of the solicitors who had been acting for the mother in relation to the proceedings in the Family Court and left a copy of the notice of motion by way of appeal at that office, obtaining from a secretary in that office a signature which acknowledged receipt of the notice of motion by way of appeal.
On 23 June 2004, the application for the stay was heard before Thackray AJ. The application for the stay was dismissed, and additional orders were made concerning the child. They were:
(a)The respondent mother shall advise the principal registrar of the Family Court of Western Australia of her address upon her arrival in Denmark and keep the principal registrar informed of any changes of address.
(b)Within 7 days of her arrival in Denmark, the respondent mother provide to the High Court of Denmark a written undertaking that she will cause the child … to be returned to Australia within 21 days in the event she is ordered to do so by the Supreme Court of Western Australia or by any other court of competent jurisdiction.
(c)Personal service of this order on the mother is dispensed with.

Has an appeal been instituted?

Section 211(3) of the Family Court Act in 2004 provided that an appeal lay from a decree of the Family Court of Western Australia to the Full Court of the Supreme Court of Western Australia. The section has subsequently been amended as a result of the creation of the Court of Appeal to require appeals to be heard by the Court of Appeal. Section 211(5), in 2004, provided that appeals were to be made in the manner and time prescribed by the RSC. The rules of relevance are O 64, O 63 and O 9. Counsel for the appellant also refers to O 72.
Order 63 and O 64 were repealed when the Court of Appeal was created, but the relevant provisions of O 9, O 63 and O 64 as they stood in June 2004 were:
(a)Order 64 r 3(1) which read:
Subject to this Rule the provisions of Order 63 shall apply with the necessary modifications, to and in relation to appeals to the Full Court from … the Family Court.
(b)Order 63 r 2(1) which provided that all appeals to the Full Court from the judgment or order of a judge 'shall be by way of rehearing, and shall be instituted by a notice of motion which shall be served and filed as hereinafter provided'.
(c)Order 63 r 3 which provided that a notice of motion 'must be served on all parties directly affected by the appeal'.
(d)Order 9 r 1(1) which provided that 'subject to the provisions of any Act and these Rules, a writ must be served personally on each defendant by the plaintiff or his agent'.
(e)Order 9 r 5 which provided that '[Order 9] Rule 1(1) and (2) shall, with any necessary modifications, apply in relation to … a notice of an originating motion … as they apply in relation to a writ'.
(f)Order 9 r 1(2) which provided that 'where a defendant's solicitor endorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant …'
Mr Donaldson SC who was appearing pro bono for the appellant in relation to this issue argued that O 72 r 5(2)(a) applied. Order 72 r 1(1) and 5(1) and (2) read:
1(1)Any document which by virtue of these Rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these Rules or by order of the court is required to be so served.
…
5(1)Service of any document not being a document which by virtue of these Rules is required to be served personally may be effected … (b) by sending the document by post address to the person to be served at his proper address.
(2)For the purposes of this Rule, the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service, his proper address for the purposes aforesaid shall be:
(a)in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which the service of the document in question is to be effected.
Mr Donaldson submitted that O 9 did not apply because the reference in O 9 r 5 to a 'notice of an originating motion' was not the same as a 'notice of motion by way of appeal' which is referred to in O 63. I do not accept that submission. A notice of motion by way of an appeal is an originating motion because it originated proceedings in the Supreme Court.
Order 72 r 5(2) does not assist the appellant because the 'proper address' cannot be a solicitor's office if the rules require personal service which the combination of O 64, O 63 and O 9 do. Counsel submitted that service at the business address of Kott Gunning was good service because they were the solicitors acting 'in the proceedings'. This argument was based on the decision in Lady De La Pole v Dick (1885) 29 Ch D 351. In that case, the appellant instituted an appeal by filing a notice of motion and serving it on the solicitors who had acted for the defendant in proceedings which had taken place before a single judge. In his short reasons for decision Cotton LJ said:
Mr Russell has carefully gone through the authorities, and they do not decide the question, whether the authority of a solicitor on the record continues, as between him and the other side during the period through which the right of appeal exists. In the present case, however, I think it clear that, the fruits of the judgment not having been obtained by the plaintiff, there still was a duty imposed on the defendant's solicitor on the record as between himself and his client, so far as the client had not discharged him, and also as regards the other side, so as to make service upon him good service. The neglecting to change a solicitor when he ceases to act does not discharge him. Rolle CJ, lays down in Lawrence v Harrison 5 Ch D 511, a principle on which we may act. He says, 'The only question is, whether the warrant of attorney be determined by the judgment given in the suit wherein he was retained; and I conceive it as not, for the suit is not determined, for the attorney after the judgment is to be called to say why there should not execution be made out against his client, and he is trusted to defend his client as far as he can from the execution. According to that principle, until the judgment has been worked out, there is a duty imposed on the solicitor on the record to defend his client against any improper steps taken for the purpose of enforcing the judgment. Until that time, therefore, the solicitor on the record must be taken, as between him and the opposite party to represent the client, unless the client not only discharges him but substitutes another solicitor on the record. Therefore, without deciding whether the representation continues so long as the right of appeal exists, we hold that in the present case the defendant's solicitors on the record did continue to represent him, and that the service was good. (356 ‑ 357)
Bowen LJ said that he agreed that the case came within the principle laid down in Lawrence v Harrison (1658) Sty 426; 82 ER 833. His Lordship said:
It is curious that the question whether the solicitor on the record continues to represent his client so long as the right of appeal exists has not been provided for by general order. It is not necessary in the present case to decide that point. I agree that, taking together what was said by Lord Coke and by Rolle CJ in Lawrence v Harrison and looking at the facts of this case, we ought to hold that the defendant's solicitors on the record continued to represent him at the time of service of this notice, and that service on them was good service.
Fry LJ said:
I think that this case ought to be decided on the ground taken by Rolle CJ. I give no opinion on the question whether the authority of the solicitor on the record continues as long as the right of appeal exists.
In the record of the argument which preceded the formal reasons for decision there is a note that counsel said:
If the proceeding is a new action, a new record in a different court, there must be a new authority to the solicitor; but by order LVIII r 1, an appeal is by way of rehearing, and is not in the nature of a new action. Under O LXXII, r 2, where no other provision is made by the rules, the existing practice continues, and the old practice was to serve the solicitor. The only rule of service of notice of appeal is O LVIII r 2, and unless it be held that this requires personal service which can hardly have been intended, the old practice must continue.
Order LXXII r 2 read:
Where no other provision is made by the Acts or these Rules, the present procedure and practice remain in force.
Order LVIII r 2 read:
The notice of appeal shall be served upon all parties directly affected by the appeal …
There was no provision in the English rules at that time which stated how the notice of appeal was to be served.
A reference to Lawrence v Harrison reveals that the case was not about service of notice of appeal, but about whether a solicitor on the record in proceedings continued to be so in relation to execution.
The Lady De La Pole case has been followed in Australia by Legoe J in Milera v Wilson (1980) 23 SASR 485. In that case, the respondent did not appear and was not represented by counsel. A defendant against whom judgment had been entered in a Local Court in an action for damages served a notice of intention to appeal against the judgment upon the solicitors appearing on the record as solicitors for the plaintiff. The solicitors had not had any contact with the plaintiff since the date of the Local Court judgment. It appears that Legoe J gave judgment ex tempore with reasons to be delivered later. He said, at 486:
The question was firstly whether the appeal had been properly instituted … I ruled that it had, and in doing so relied on r 297 of the Local Court Rules, but more particularly Cotton LJ in Lady De La Pole v Dick.
Having quoted from Cotton LJ's judgment in that case, Legoe J then said:
This provides cogent authority for the present matter and I ruled accordingly.
Rule 297 of the Local Court Rules at the time provided:
Where a party acts by a solicitor, service of any proceeding document upon the solicitor, or delivery thereof at his office, or the sending thereof to him by post prepaid, shall be deemed to be good service upon the party for whom the solicitor acts, as upon the day when the same is so served and delivered or upon which in the ordinary course of post it would be delivered.
In my opinion, neither the Lady De La Pole case nor Lawrence v Harrison nor Milera v Wilson overcome the express requirements of the Family Court Act and RSC. An appeal is entirely a creature of statute (see CDJ v VAJ (1998) 197 CLR 172 [95]; Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 309, 316 ‑ 317). To institute the appeal the steps prescribed must be followed. The Act requires the appeal to be instituted in accordance with the RSC. The RSC expressly require personal service on the respondent. Service on a solicitor may also amount to good service but this will be so only where the solicitor endorses that they accepted service, which did not happen on this occasion.
In this case, the steps prescribed by the RSC have not been followed. If there has been no service, then the very foundation for the court's jurisdiction does not exist. See Laurie v Carroll (1958) 98 CLR 310 and John Pfeiffer v Rogerson (2000) 203 CLR 503 [13].
There was nothing in the facts of the case to allow the appellant to contend (and it was not contended) that the respondent was estopped from denying service by reason of estoppel by convention, as was the case in Kenneth Allison Ltd v AE Limehouse & Co (1992) 2 AC 105, 126 ‑ 127. There was no evidence of any agreement that service on the solicitors who had been acting in the Family Court would be treated as good and effective service. There was no evidence of any representation being made by the mother's trial lawyers that they would accept service of the notice of motion by way of appeal. See Kenneth Allison Ltd, 127. The signature of a secretary in the solicitor's office acknowledging receipt did not amount to an endorsement by the solicitors pursuant to O 9.

Order 2 r 1 - an irregularity

Order 2 r 1 of the Supreme Court Rules is concerned with the effect of non‑compliance with the rules. Order 2 r 1(1) provides that:
Where in beginning or purporting to begin any proceedings … there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content, or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
Order 2 r 1(2) provides, relevantly:
[T]he court may, on the ground that there has been such a failure as is mentioned in par (1), and on such terms as to costs or otherwise as it thinks fit, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its power under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

In Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 the Court of Appeal confirmed that O 2 r 1 did away with the old distinction between nullities and irregularities. Thus the omission in this case, namely the failure to personally serve the notice of motion by way of appeal, as serious as it is, is an irregularity which the court in the exercise of its discretion might, by appropriately formulated orders, regularise. However, in view of Laurie v Carroll and Pfeiffer's case it is a very serious irregularity. If an order was to be made to remedy the irregularity, the order would have to have the effect of providing for effective service on the mother who is now resident with the child out of the jurisdiction. No submission was made about how that could be achieved.
No application was ever made seeking an order for substituted service. No application was ever made for an extension of time to effect service or substituted service. The need for an extension comes about by reason of O 63 r 4(1), which provides that:
A notice of motion by way of appeal must be served and a copy thereof filed within 21 days from the date of the judgment … or within such extended time as the Full Court or a Judge may allow.
In the circumstances, it is difficult to see how any order could be made regularising the failure to effect personal service. Even if the failure to make any such applications were not fatal to the making of some sort of regularising order under O 2 r 1, the failure to make any such applications is a factor relevant to the exercise of discretion under O 2 r 1.
There are other factors that bear upon the exercise of the discretion to be exercised. The first is that this case concerns a child that was about 4 years old at the time of the judgment the appellant wishes to appeal against and at the time of the filing of the notice of motion by way of appeal. The child is now nearly 8 years old and has been with his mother in Denmark for around 4 years. Other relevant matters are that the appellant, having filed a notice of motion, then failed to file anything further from 22 June 2004 until 10 September 2007, when a notice of intention to proceed was filed.
In an affidavit sworn by the appellant and dated 15 September 2008, the appellant explains that between June 2004 and 2006, the appellant had sought legal aid in order to conduct the appeal. The application was largely unsuccessful despite review proceedings. In the same affidavit, the appellant explains that he was unemployed and therefore unable to afford his own legal representation, and he also deposed that he was unwell.
Another factor of relevance is that there are 43 grounds of appeal which the appellant conceded would have to be redrafted. It may be observed that it is not contended in the grounds of appeal that the trial judge took into account irrelevant matters or failed to take into account considerations made relevant by the Family Court Act, and nor do they allege that there were any errors of law (not relating to findings of fact). In the main the challenges relate to specific findings of fact made by the trial judge. The overall impression to be gained from the grounds is that the appellant simply wishes to re‑argue the case without showing error, even though the grounds in form usually begin by alleging error by the trial judge in relation to a particular point. Alternatively, the impression could be gained that the appellant wishes to argue points that do not involves any issue or any significant issue in the case. So, for example, ground 15 involves a challenge to the trial judge's conclusion about when the relationship between the appellant and the respondent ended, but this was clearly not a factor which affected the outcome of the case or the orders made by the trial judge. Ground 17 simply argues in relation to a matter which, on its face, is a non‑issue.
There is a particular defect with a large number of grounds which should also be mentioned. If a finding of fact is said to amount to an error of law, then the ground is, in effect, contending that there was no evidence to support the ground. Only if there is no evidence to support the ground directly or by inference will a finding be an error of law. If a finding is said to be an error of fact, the ground must mean that there is evidence to support the finding made, but that other evidence was of such weight that the only reasonable conclusion was contrary to the finding actually made. Thus to allege, as many grounds do, that the trial judge erred 'in fact and in law' in making a finding is to advance a ground which contains within it a contradiction, ie, that there was no evidence to support the finding under challenge and that there was evidence to support the finding. See, for example, grounds 15, 16, 21 ‑ 23, 26 ‑ 30, 32, 35, 36, 38, 41, 44, 48, 50, 51 ‑ 53, (second) 53, (second) 54 and 55.
There are other defects with other grounds. For example, ground 15 has already been referred to, but ground 15(b) contends that the trial judge gave 'no sufficient good reason' as to why he was satisfied that the parties ceased to live together by the end of September. There is no reasonable prospect of that ground succeeding because his Honour gave very detailed reasons why this was so. The particulars given that there was no 'sufficient good reason', bearing in mind the evidence of the father, the evidence of Ms D and the evidence of the wife under cross‑examination, ignores the fact that the trial judge rejected the father's evidence and Ms D's evidence, and overall preferred the evidence of the wife about when the relationship ended. Ground 24 has no reasonable prospects of succeeding. The appellant refers in the ground to his evidence that he had a good 'long term view with regard to establishing contact'. The ground contends that no sufficient weight was given to the fact that in other relationships he had worked through a proper regime of 'contact set-up'. That ground has no reasonable prospect of success because other orders made by the trial judge on 1 June permitted the father to have contact with the child.
Ground 31 alleges an error but without any indication as to whether the error was an error of law or an error of fact, and the third sentence indicates that the appellant wishes to rely upon the evidence of Ms D that the mother 'set up' the father when the trial judge rejected Ms D's evidence.

Grounds 33, 34, 48 and 49 all refer to Ms D's evidence, ignoring entirely his Honour's conclusion that Ms D's evidence should be rejected. As a result, those four grounds have no reasonable prospects of success.
As a result, the irregularity which is of a serious kind (that is, non‑compliance with the express requirements of the rules to effect personal service), the long delay in taking any step in the appeal, the serious deficiencies in the grounds of appeal, and the fact that the child has been with the mother now for half of his life, all lead to the conclusion that the discretion conferred by O 2 r 1 should be exercised by making an order wholly setting aside the proceedings.
The appellant applied for an adjournment to call evidence from a Dr W who the appellant said was a doctor who had treated the child while he was in Australia. However, Dr W was not called to give evidence at the trial, and the application should not be adjourned to allow this evidence to be gathered. The evidence would not bear upon the factors which have been taken into account in reaching a conclusion that the proceedings should be set aside.
An adjournment was also sought by the appellant because he said that he had been 'given the name' of a barrister who was also a 'child psychologist' and the appellant said that he would like the opportunity to obtain advice from that unnamed person. That application should be refused. The appellant has had a very long time to seek out legal advice.
As a result, the order should be made wholly setting aside the present proceedings.
NEWNES AJA: I agree with Pullin JA.