Smith v McCusker QC [No 2]

[2012] WASCA 173

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SMITH -v- McCUSKER QC [No 2] [2012] WASCA 173

CORAM:   PULLIN JA

NEWNES JA

HEARD:   21 AUGUST 2012

DELIVERED          :   21 AUGUST 2012

FILE NO/S:   CACV 49 of 2011

BETWEEN:   ELIZABETH ANNE SMITH

JAMES GARNETT 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

Catchwords:

Practice and procedure - Application to defer appeal hearing - Turns on own facts

Practice and procedure - Application for the court to disqualify itself - Where orders sought are not within court's power

Practice and procedure - Application for judges from another jurisdiction to be appointed or for the matter to be referred to the High Court - Where orders sought are not within court's power

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellants:     Second-named appellant appeared in person

Respondent:     Mr J C Van Der Walt

Solicitors:

Appellants:     In person

Respondent:     Jackson McDonald

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

Nil

1. REASONS OF THE COURT:  The court has heard the appellant's application that the hearing of the appeal be deferred, that the court disqualify itself from hearing the appeal and that this court either refer the matter to the High Court for determination or appoint judges from another jurisdiction to hear the appeal.

2. In relation to the application to defer the hearing of the appeal, which is in effect an application to adjourn, two reasons are advanced by the appellant.  First, the appellant says that she suffers ill‑health and she has produced in an affidavit some medical certificates.  They are particularly unhelpful.  They simply state that the appellant Mrs Smith will be unfit to continue 'their usual occupation'.  There is no other information provided from a medical practitioner in support of the application.  The application for a deferral did not specify a time for an adjournment but in oral submissions the appellant suggested deferral of two months.

3. Secondly, the appellant says that there should be an adjournment because of work to be done in preparing the appeal for hearing and in par 6 of the appellant's affidavit of 17 August 2012 there is a list of work still to be done according to the appellant.  The position is that the appeal is not listed for hearing until 22 October 2012 and we are still not at the end of August, so there is quite a period of time left to complete the task to be done.

4. Neither of the reasons proffered would justify an adjournment of the proceedings.  The appellant's advancing age brings on the prospect of further deterioration in health and an adjournment would, if anything, prejudice the appellants.

5. The application for an adjournment of the appeal hearing is dismissed.  As to the application that the court disqualify itself from hearing the appeal it is not possible for two members of the court to disqualify the rest of the members of the court or those who might sit on the court to hear the appeal, nor is it possible to 'refer the matter to the High Court for determination', or 'appoint judges from another jurisdiction to hear the appeal'.  This court does not have the authority to make those orders.

6. The application for the adjournment, and the application for the orders specified in par 3 of the appellant's application of 1 August 2012 are therefore dismissed.