Sinclair v The Minister for Health
[2007] WASCA 281
•22 NOVEMBER 2007
SINCLAIR -v- THE MINISTER FOR HEALTH [2007] WASCA 281
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 281 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:110/2007 | 22 NOVEMBER 2007 | |
| Coram: | PULLIN JA NEWNES AJA | 21/11/07 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY KAY SINCLAIR THE MINISTER FOR HEALTH in his capacity as the Board of KING EDWARD MEMORIAL HOSPITAL |
Catchwords: | Practice and procedure Dismissal of appeal by reason of noncompliance with an order of the court Turns on own facts |
Legislation: | District Court of Western Australia Act 1969 (WA), s 79 Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii) |
Case References: | Allmark v Mossensons [2006] WASCA 127 Sinclair v Minister for Health [2007] WASCA 253 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SINCLAIR -v- THE MINISTER FOR HEALTH [2007] WASCA 281 CORAM : PULLIN JA
- NEWNES AJA
- Appellant
AND
THE MINISTER FOR HEALTH in his capacity as the Board of KING EDWARD MEMORIAL HOSPITAL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : CIV 4532 of 1994
Catchwords:
Practice and procedure - Dismissal of appeal by reason of noncompliance with an order of the court - Turns on own facts
(Page 2)
Legislation:
District Court of Western Australia Act 1969 (WA), s 79
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Mr D R Clyne
Solicitors:
Appellant : In person
Respondent : Dibbs Abbott Stillman
Case(s) referred to in judgment(s):
Allmark v Mossensons [2006] WASCA 127
Sinclair v Minister for Health [2007] WASCA 253
(Page 3)
1 PULLIN JA: This is an appeal again interlocutory orders by Judge Goetze on 6 July 2007. The appeal notice says that the decision appealed against was made on 6 July 2007, but after the judicial officer's name there is a note which reads:
Dismissal of plaintiff's appeals 14 and 19 February and 2 March 2007 and applications 2, 3, 4, 5 and 6 of 12 March 2007.
2 An examination of the District Court record reveals that the only order extracted on that day relates to leave which was granted to the defendant to issue subpoenas with consequential orders allowing the parties to inspect documents and for payment of costs.
3 The associate's record reveals that there were also orders granting the appellant liberty to amend her statement of claim with consequential orders permitting amendment of the defence and reply and for the plaintiff to issue any request for further and better particulars of defence. However an examination of the transcript of the hearing on 6 July 2007 reveals that there were also before Judge Goetze a number of appeals which had been instituted by the appellant against earlier interlocutory orders made by District Court registrars in chambers.
4 According to the appeal notice, the orders related to a listing conference, the listing of the action for trial and an application for a stay of proceedings. The grounds also allege that Judge Goetze dismissed an application for vacation of trial dates, removal of the action 'from the Court's programming system' and 'removal or extension of time limit on the exchange of expert reports'.
5 It is impossible to determine from reading the appellant's written case whether there is any merit in the appeal, but I do observe from a reading of the transcript before Judge Goetze that the registrar's orders appealed against all appear to have been overtaken by subsequent orders and events. I can see that in relation to one of the appeals that Mr Foot who was speaking for the appellant agreed that it could be dismissed.
6 Leave to appeal against all these decisions is required because the orders challenged concern interlocutory orders. Leave is required before a party may appeal against an order of the District Court if it is not a final order. See s 79 of the District Court of Western Australia Act. Interlocutory orders are not final orders. See Allmark v Mossensons [2006] WASCA 127 at 23.
(Page 4)
7 The requirement of leave is for the purpose of discouraging appeals against interlocutory orders and discretion to grant leave is not confined by express criteria. But before granting leave the appeal court will usually want to be satisfied that the decision below was attended with sufficient doubt to justify the grant of leave and that a substantial injustice would be done if it remained unreversed. See the authority cited in Sinclair v Minister for Health [2007] WASCA 253 which was another appeal by this appellant against interlocutory orders. A tight rein needs to be kept on applications which seek to interfere with the programming orders of judges at first instance.
8 None of the orders complained about are orders which effected the appellant's substantive rights. Any genuine difficulty with time limits or progression of the matter to hearing could be dealt with by further case management orders in the District Court. Indeed, that appears to have happened in this case.
9 On the limited information put before this court, there is nothing to indicate that there would be any injustice, let alone substantial injustice, if the orders made by Judge Goetze were not reversed.
10 In this appeal the regulation ordered the appellant to file appeal book indexes and to file appeal books in accordance with the indexes approved by the registrar. The appeal book index was settled on 24 October 2007. The order was that the appeal books be filed by 31 October 2007.
11 Subsequently, the appellant was granted an extension of time to file the appeal books when a registrar ordered on 2 November 2007 that the appellant file the appeal books by 9 November 2007 along with supplementary appeal books containing the transcript of proceedings before Judge Goetze. A further extension was granted by the court on 9 November 2007, allowing the appellant to file the appeal books by 15 November 2007.
12 The appellant has not filed any appeal books and has not appeared today. The trial between the parties is listed for hearing in the District Court in February 2008. The respondent has applied to have the appeal dismissed by reason of the appellant's failure to obey the court's order of 9 November 2007.
13 In the circumstances set out above, particularly the failure to demonstrate merit in the appeal and the failure to show any substantial injustice in the decisions appealed against, the appeal should be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules
(Page 5)
- 2005 (WA)because the appellant has not obeyed the orders requiring the filing of the appeal books.
14 It is also necessary to add that on 23 October 2007 the appellant filed an application 'for leave for her husband, Roger Clement Foot, to speak for her as a McKenzie friend at the hearing of this appeal and at the hearing of all interlocutory matters'. That application was adjourned for hearing on 9 November 2007 and the court adjourned the application for hearing today.
15 Before the matter was adjourned the appellant was informed that she should not assume that an order would be made permitting Mr Foot to speak on her behalf. By letter dated 19 November 2007, the appellant wrote to the registrar of this court. The letter read:
Given what was clearly explained in an affidavit, [Justice] Pullin in CACV/142/2007 in effect was making it very clear that unless a party is represented by a certified lawyer that party cannot be heard. Accordingly an adjournment of the hearing until I obtain representation by a certified lawyer is the only way I can have a hearing and proceed with my appeal.
16 The supervisor of the Court of Appeal wrote advising that the matter would proceed today. There is no reason why the appellant cannot make submissions on her own behalf. On 9 November 2007, Mrs Sinclair addressed the court and showed no signs of being disabled from speaking on her own behalf. She was allowed to confer with Mr Foot who sat beside her and she would certainly have been given that facility today if she had chosen to appear. I would uphold the application which is made by the respondent.
17 NEWNES AJA: I agree and have nothing to add.
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