S v D

Case [2014] WASCA 224 (S2)


S -v- D [2014] WASCA 224 (S2)



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASCA 224 (S2)
THE COURT OF APPEAL (WA)
Case No:CACV:150/201221 JANUARY 2016
Coram:BUSS JA
NEWNES JA
MURPHY JA
12/02/16
21Judgment Part:1 of 1
Result: Application dismissed
B
PDF Version
Parties:S
D

Catchwords:

Practice and procedure
Application to correct an alleged mistake after disposition of appeal and entry of final orders
Purported application under slip rule
Whether error as alleged
Discretionary considerations
Delay

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 10
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 35

Case References:

Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (No 2) [2011] WASCA 232; (2011) 42 WAR 224
Bailey v Marinoff (1971) 125 CLR 529
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52
D and S [2012] FCWAM 79
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253
S v D [2014] WASCA 224
S v D [2015] HCASL 66
Stambulich v Ekamper [No 4] [2008] WASCA 189
Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17
The State of Western Australia v Wallam [2008] WASCA 117 (S)


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : S -v- D [2014] WASCA 224 (S2) CORAM : BUSS JA
    NEWNES JA
    MURPHY JA
HEARD : 21 JANUARY 2016 DELIVERED : 12 FEBRUARY 2016 FILE NO/S : CACV 150 of 2012 BETWEEN : S
    Appellant

    AND

    D
    Respondent


ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : DUNCANSON M

Citation : D and S [2012] FCWAM 79

File No : PTW 1285 of 2010


Catchwords:

Practice and procedure - Application to correct an alleged mistake after disposition of appeal and entry of final orders - Purported application under slip rule - Whether error as alleged - Discretionary considerations - Delay

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 10


Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 35

Result:

Application dismissed


Category: B


Representation:

Counsel:


    Appellant : In person
    Respondent : Ms E Brownlie

Solicitors:

    Appellant : In person
    Respondent : Leach Legal



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

Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (No 2)

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Details
AGLC
S v D [2014] WASCA 224 (S2)
Case
[2014] WASCA 224 (S2)
Decision Date

CaseChat Overview and Summary

In the case of S v D, the appellant sought to challenge the final orders entered in an earlier appeal on the basis of an alleged mistake in the disposition of that appeal. The respondent argued that the application was out of time and did not meet the requirements of the slip rule. The matter was before the court to determine whether the application should be permitted and, if so, to decide on the appropriate course of action.

The primary legal issue for the court was whether the appellant had identified a genuine error in the disposition of the appeal that warranted the correction of the final orders. The court also had to consider whether the application was made within a reasonable time and whether there were any discretionary considerations that should influence the decision. The court had to weigh the importance of correcting any alleged error against the potential prejudice to the respondent and the importance of finality in legal proceedings.

After reviewing the relevant case law and the circumstances of the case, the court determined that the appellant had not demonstrated a genuine error in the disposition of the appeal. The court found that the application was made well after the time for an appeal or application for leave to appeal had expired, and that the appellant had not provided a satisfactory explanation for the delay. The court considered the discretionary factors and concluded that the application should be dismissed. The court emphasised the importance of finality in legal proceedings and the need to prevent the reopening of cases where there is no clear evidence of an error.

The court dismissed the application and made no orders in relation to the application. The final orders remained as they were, and the appeal was not reopened.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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