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…

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.

Keep reading for free

Create a free CaseChat account to read R v S and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] WASCA 11
Decision Date: 15 JANUARY 2009

CaseChat Overview and Summary

The case of R v S involved an appeal where the appellant, R, sought to challenge a decision made by the lower court. The respondent, S, had not been personally served with the notice of appeal, but instead, the notice was served on their former solicitors. The High Court of Australia was tasked with determining whether the appeal was properly initiated due to this irregularity in service. The central legal issue was whether the appeal was validly commenced despite the non-compliance with the rules regarding the service of the appeal notice. Specifically, the court had to decide whether the irregularity in the service of the notice could be rectified under the provisions of Order 2 of the relevant rules.

The High Court considered whether the procedural irregularity could be deemed a minor one that did not affect the fundamental fairness of the proceedings. The Court examined the purpose of the rules governing the service of the appeal notice and whether the failure to serve the notice personally on the respondent was a material irregularity. The Court concluded that while the service on the respondent's former solicitors was not in strict compliance with the rules, it did not necessarily render the entire appeal process invalid. However, the Court held that the irregularity could not be cured by Order 2, as it was a significant procedural step that was not followed. As a result, the Court found that the appeal was not properly on foot due to this non-compliance.

In light of the above, the Court set aside the proceedings and ordered that the appeal be dismissed. This decision underscored the importance of adhering to procedural rules in legal proceedings and highlighted the Court's commitment to upholding the integrity of the judicial process. The Court's ruling reinforced the necessity for strict compliance with rules regarding the service of important legal documents, even in the context of appeals.

Orders

Orders of the court

Order made setting aside present proceeding

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.