Smith v McCusker QC
[2012] WASCA 130
•19 JUNE 2012
SMITH -v- McCUSKER QC [2012] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 130 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:49/2011 | 19 JUNE 2012 | |
| Coram: | PULLIN JA | 19/06/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES GARNETT SMITH ELIZABETH ANNE SMITH MALCOLM McCUSKER QC |
Catchwords: | Appeal Application for a declaration of relationships and dealings between officers of the court and the respondent and his representatives Where application is an attempt to fish for evidence Appeal Whether appellants should be permitted to inspect the court correspondence file |
Legislation: | Nil |
Case References: | Lashansky v Legal Practice Board [2011] WASCA 42 Western Australia v Watson [1990] WAR 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- McCUSKER QC [2012] WASCA 130 CORAM : PULLIN JA HEARD : 19 JUNE 2012 DELIVERED : 19 JUNE 2012 FILE NO/S : CACV 49 of 2011 BETWEEN : JAMES GARNETT SMITH
- ELIZABETH ANNE SMITH
Appellants
AND
MALCOLM McCUSKER QC
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTIN CJ
Citation : SMITH -v- McCUSKER QC [No 7] [2011] WASC 88
File No : CIV 1230 of 1995
(Page 2)
Catchwords:
Appeal - Application for a declaration of relationships and dealings between officers of the court and the respondent and his representatives - Where application is an attempt to fish for evidence
Appeal - Whether appellants should be permitted to inspect the court correspondence file
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellants : Second-named appellant appeared in person
Respondent : Mr A J Musikanth
Solicitors:
Appellants : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Lashansky v Legal Practice Board [2011] WASCA 42
Western Australia v Watson [1990] WAR 248
(Page 3)
1 PULLIN JA: The appellants are appealing against the judgments dismissing an action against the respondent. The appeal is listed for hearing later this year and there have been difficulties in settling upon the documents to be included in the appeal books. The appellants are preparing the appeal books.
2 By an application dated 22 May 2012 the appellants sought directions from the registrar about a number of matters. Some of the points dealt with were the time for filing the appeal books and others related to what documents were to be included in them. Three other orders sought were that:
(a) The court by its own officer with authority to do so declare in open court all relationships and dealings of a business, professional and personal nature between any officer judicial or administrative and the respondent, and any solicitor or counsel who has represented him in these or related proceedings since 1995.
(b) The Respondent be restrained from consulting with and seeking orders from the court without consulting with and giving notice to the Appellants.
(c) The Appellants may inspect the ... court ... correspondence file.
3 On inquiry from the second-named appellant Mrs Smith, who is appearing in person, it seems that the first of the orders is sought because the appellants are perhaps giving belated consideration to a contention that there was an apprehension of bias on the part of the trial judge because of professional associations the trial judge may have had with the respondent, or potential apprehension of bias in relation to appeal court judges who may hear the appeal. The order sought is an attempt to fish for such evidence and of such an association.
4 It is important to point out that the administration of justice is a practical business which relies to a very great extent on judges putting aside whatever personal or professional associations they may have had and doing justice as they are sworn to do: see Western Australia v Watson [1990] WAR 248, 264 and Lashansky v Legal Practice Board [2011] WASCA 42.
5 Further, there is no officer of the court with authority to make the declaration sought and clearly no person in the court would be able to say anything about personal associations, if they exist. So the first order will not be made.
(Page 4)
6 As to the second order there is no foundation for such a restraint. It is necessary from time to time for a registrar to contact the parties about documents to be included in the appeal books. The respondent's solicitors have given an undertaking that any written communications with registry will be copied to Mrs Smith. So there is no need for the second order.
7 As to the third order, there will be no order that the appellants be permitted to inspect the court correspondence file. Correspondence is not part of the court record and if copies of communications with registry are provided to Mrs Smith there is no reason for Mrs Smith to be concerned. As a result the application is dismissed.
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