TET v SP [No 2]
[2009] WASCA 144
•7 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TET -v- SP [No 2] [2009] WASCA 144
CORAM: NEWNES JA
HEARD: 7 AUGUST 2009
DELIVERED : 7 AUGUST 2009
PUBLISHED : 11 AUGUST 2009
FILE NO/S: CACV 12 of 2009
BETWEEN: TET
Appellant
AND
SP
Respondent
ON APPEAL FROM:
For File No : CACV 12 of 2009
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :PENNY J
File No :PTW 7113 of 2001
Catchwords:
Appeal - Application for extension of time to file appellant's case - Appellant in person - Turns on own facts
Legislation:
Nil
Result:
Extension of time granted
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R I M Bannerman
Solicitors:
Appellant: In person
Respondent: Bannerman Solicitors
Case(s) referred to in judgment(s):
TET v SP [2009] WASCA 101
NEWNES JA: On 12 June 2009, I made certain orders in this appeal, including an order that, on or before 29 June 2009, the appellant file and serve a re‑amended appeal notice setting out details of the decision in respect of which the appeal is brought. I also extended the time within which the appellant was required to file the appellant's case to 24 July 2009. See TET v SP [2009] WASCA 101.
A re‑amended appeal notice was lodged by facsimile on 30 June 2009, but the appellant's case has not been filed. The appellant seeks a further extension of time within which to file and serve the appellant's case.
The appellant has also applied, by an application dated 28 July 2009, among other things, for orders apparently to the effect that she be permitted to produce on the appeal a large number of documents which she says were subpoenaed for the purposes of the proceedings below but which the trial judge refused to admit into evidence, and documents in respect of which she says leave to issue a subpoena was refused by the trial judge. In addition, the appellant seeks an order that two witnesses give evidence on the appeal by way of a telephone link up.
The terms or effect of the orders the appellant seeks in relation to the documents referred to in the application are not entirely clear and, at least at this stage, it is also not clear how they are relevant to the appeal. What does seem clear, however, is that, contrary to the appellant's belief, none of the orders sought is necessary to enable the appellant to prepare the appellant's case. In that connection, the appellant appears to have been under a misapprehension as to what is required to be contained in the appellant's case. To the extent the appellant might need to refer to any of the subpoenaed documents for the purpose of preparing the appellant's case, I have been informed by the appellant that she has access to them at the Family Court.
On the last occasion this matter came before me, on 12 June 2009, I observed that until the appellant's case was filed the appeal was becalmed and that it could not be allowed to remain in that state. Although the appellant did not appear on that occasion, a copy of my published reasons was forwarded to the appellant by the Court of Appeal Office. As I have mentioned, although the time for the filing and service of the appellant's case was extended on that occasion to 24 July 2009, that time limit was not met. The appellant has said this morning that she will be able to file and serve the appellant's case within the next three weeks. The respondent does not object to an extension of that magnitude.
As the appellant is acting in person and appears to have been under some misunderstanding as to what is required of her in preparing the appellant's case (a misunderstanding which I hope in light of what I have said in the course of the hearing this morning has now been corrected), I am prepared to allow the appellant some further time within which to file and serve the appellant's case. But this aspect of the appeal procedure must be brought to finality.
In the meantime, the appellant should serve the re‑amended appeal notice and the application dated 28 July 2009, on the Independent Children's Lawyer. After the appellant's case has been filed, the appellant must serve a copy of that, too, on the Independent Children's Lawyer.
I will adjourn the appellant's application of 28 July 2009 to a further directions hearing after the appellant's case is to be filed. The grounds of appeal might shed some light on the basis upon which the appellant considers that the material which is the subject of the application is relevant to the appeal and the application can then be considered in the light of the issues on the appeal.
The orders that I will make are:
1.on or before 14 August 2009, the appellant serve on the Independent Children's Lawyer a copy of the re‑amended appeal notice and the appellant's application dated 28 July 2009;
2.the time within which appellant is to file and serve the appellant's case be extended to 28 August 2009;
3.the appellant's application dated 28 July 2009 be otherwise adjourned to the next directions hearing;
4.there be a directions hearing at 10 am on 25 September 2009;
5.the costs of today be costs in the appeal.