Smith v McCusker QC [No 2]

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

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.
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.
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.
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.
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.
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.

The case of Smith v McCusker QC [No 2] involves an application made by the plaintiff, Smith, to the court seeking various procedural orders. The plaintiff sought the deferral of an appeal hearing, the disqualification of the judges involved, the appointment of judges from another jurisdiction, and a referral of the matter to the High Court. The application was made to the Supreme Court of New South Wales, where the original proceedings were heard. The defendant, McCusker QC, opposed the plaintiff's application, arguing that the orders sought were not within the court's power and that the application turned on its own facts.

The legal issues the court had to decide centred around the scope of its own powers in relation to the various orders sought by the plaintiff. The court had to determine whether it had the jurisdiction to defer the appeal hearing, disqualify itself, appoint judges from another jurisdiction, or refer the matter to the High Court. The court also had to assess whether the plaintiff's application was based on sufficient grounds and whether it was an abuse of process.

In its decision, the court held that the orders sought by the plaintiff were not within its power and that the application turned on its own facts. The court found that it did not have the jurisdiction to defer the appeal hearing, disqualify itself, appoint judges from another jurisdiction, or refer the matter to the High Court. The court also held that the plaintiff's application was an abuse of process and dismissed it. The court emphasised that such applications should only be made where there are exceptional circumstances and that the plaintiff had not demonstrated any such circumstances in this case.

The court's decision was final and binding on the parties. The plaintiff's application was dismissed, and the appeal hearing proceeded as scheduled. The court's reasoning and outcome in this case serve as a reminder to litigants that they must exercise caution when making applications for procedural orders and that such applications should only be made where there are exceptional circumstances. The court's decision also highlights the importance of respecting the powers and jurisdiction of the courts and the need for litigants to act in good faith and not abuse the legal process.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established