JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SIMS -v- SUDA LTD [No 2] [2015] WASCA 105
CORAM: McLURE P
NEWNES JA
HEARD: 19 DECEMBER 2014
DELIVERED : 2 JUNE 2015
FILE NO/S: CACV 11 of 2014
BETWEEN: DOUGLAS ARTHUR SIMS
Appellant
AND
SUDA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
Citation :SIMS -v- SUDA LTD [2014] WADC 7
File No :CIV 2168 of 2011
Catchwords:
Practice and procedure - Application to dismiss appeal on grounds that appellant's case does not comply with Supreme Court (Court of Appeal) Rules 2005 (WA) or grounds of appeal have no reasonable prospect of succeeding - Importance of compliance with Rules - Position of litigants in person - Whether appellant should be given opportunity to file fresh appellant's case - Likelihood of future compliance with Rules
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b) (c), r 32(5) (8), r 43(2)(a), r 44(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr M L Bennett
Solicitors:
Appellant: In person
Respondent: Bennett + Co
Case(s) referred to in judgment(s):
Avsar v Binning [2009] WASCA 219
George v Fletcher (Trustee) [2012] FCAFC 148
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Sims v Suda Ltd (No 2) [2015] FCA 281
Sims v Suda Ltd [2014] WASCA 113
Sims v Suda Ltd [2015] WASCA 65
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568
Western Excavating (ECC) Ltd v Sharp [1978] QB 761
JUDGMENT OF THE COURT: This appeal comes before the court on, among others, an interim application by the respondent for an order that the appeal be dismissed pursuant to r 43(2)(a) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal rules), on the ground that the appellant's case does not comply with the requirements of r 32(4)(b) and (c), and r 32(5) ‑ (8) (dealing with the form of, inter alia, grounds of appeal and written submissions in an appellant's case), or alternatively, pursuant to r 44(1) on the ground that none of the grounds of appeal has a reasonable prospect of succeeding.
It is necessary, before turning to the substance of the application, to set out the relevant background.
Background
In October 2007, the appellant was employed by the respondent in the position of International Business Director, pursuant to a written employment agreement. On 9 June 2009, the appellant resigned from that position.
The appellant subsequently brought proceedings in the District Court for damages for breach by the respondent of the employment agreement, alleging that his resignation had not been voluntary but that he had been constructively dismissed. The appellant pleaded, relevantly, that between July 2008 and June 2009 the respondent, by its chairman Mr…
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- AGLC
- Sims v Suda Ltd [No 2] [2015] WASCA 105
- Case
- [2015] WASCA 105
- Decision Date
CaseChat Overview and Summary
The court examined the appellant's case and found that it did not comply with the rules in several respects. The appellant's case lacked the necessary detail and specificity required by the rules, and it failed to properly identify and address the findings of fact and conclusions of law made by the primary judge. The court also considered the likelihood of future compliance by the appellant with the rules, and whether it would be just and convenient to give the appellant an opportunity to file a fresh appellant's case. In reaching its decision, the court took into account the appellant's status as a litigant in person and the importance of ensuring that all parties have a fair opportunity to present their cases. The court held that while it was desirable to give the appellant an opportunity to remedy the deficiencies in his case, it was not just and convenient to do so in the circumstances of this case. The court concluded that the appellant's case did not comply with the rules and that none of the grounds of appeal had a reasonable prospect of success.
The court dismissed the appeal and made orders for the respondent to recover its costs of and incidental to the application. The court also made orders that the appellant pay the respondent's costs of the appeal on an indemnity basis, and that the appellant's security for costs be forfeited. The court held that the appellant's failure to comply with the rules and the lack of a reasonable prospect of success on any of the grounds of appeal justified the imposition of costs on the appellant. The court's decision emphasised the importance of compliance with the rules and the need for litigants in person to take their obligations seriously. The court also recognised the need to balance the interests of all parties in ensuring that appeals are decided on their merits and that the rules are applied fairly and consistently.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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