Sims v Suda Ltd [No 2]

Case [2015] WASCA 105

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

  1. 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.

  2. It is necessary, before turning to the substance of the application, to set out the relevant background.

Background

  1. 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.

  2. 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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Sims v Suda Ltd [No 2] [2015] WASCA 105
Case
[2015] WASCA 105
Decision Date

CaseChat Overview and Summary

Sims v Suda Ltd [No 2] involved an appeal by the appellant against a decision made in the District Court, where the appellant's claims for breach of contract and constructive dismissal were dismissed. The respondent sought to have the appeal dismissed under the Supreme Court (Court of Appeal) Rules 2005 (WA) for non-compliance with the rules and for lack of a reasonable prospect of success. The court had to decide whether the appellant's case complied with the rules governing the form and content of the appellant's case, and whether any of the grounds of appeal had a reasonable prospect of success. The appellant, who was representing himself, filed an appellant's case that was allegedly non-compliant with the Court of Appeal rules. The respondent's application for dismissal was based on the appellant's failure to adhere to the prescribed format and content requirements of the rules, and the respondent argued that there was no reasonable prospect that any of the grounds of appeal would succeed.

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

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. 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 Jooste, had engaged in a course of conduct which undermined or obstructed the appellant's authority and control as International Business Director and thereby:(a)undermined the trust and confidence required for him to perform the employment contract;(b)was calculated to destroy or seriously damage the relationship of trust and confidence between him and the respondent; and(c)constituted a failure to act in good faith, in breach of the implied terms of the employment contract (statement of claim, par 14). The alleged course of conduct, which is the main focus of the appeal, was set out in particulars of par 14 of the statement of claim, which it will be necessary to come back to in some detail in due course. The appellant further alleged that he had not been paid certain amounts to which he was entitled under his contract of employment. The respondent denied that the alleged course of conduct had occurred (par 14) and pleaded that the appellant had resigned voluntarily (par 16). It also denied that the appellant was entitled to the amounts claimed. On 5 February 2014, following a seven day trial, Stone DCJ dismissed the appellant's action. His Honour found that the appellant had not been constructively dismissed but had resigned of his own volition. The primary judge further found that the appellant was not entitled to the amounts claimed under his employment agreement. The appellant filed an appeal notice on 7 February 2014. On 12 March 2014, he filed an appellant's case. The respondent's solicitors wrote to the appellant, by letter dated 18 March 2014, setting out a number of respects in which they said the appellant's case did not comply with the Court of Appeal rules. Following further correspondence between the parties, on 8 April 2014 the respondent filed the present application for the appeal to be dismissed.

Ratio Decidendi

Legal Principle Established

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