TET v SP [No 3]
[2009] WASCA 206
•16 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TET -v- SP [No 3] [2009] WASCA 206
CORAM: PULLIN JA
NEWNES JA
HEARD: 13 NOVEMBER 2009
DELIVERED : 16 NOVEMBER 2009
FILE NO/S: CACV 12 of 2009
BETWEEN: TET
Appellant
AND
SP
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :PENNY J
File No :PTW 7113 of 2001
Catchwords:
Practice and procedure - Appeal - Failure to file appellant's case in proper form - Appeal dismissed under r 43(2)(g)(ii) - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R I M Bannerman
Independent Children's Lawyer : Ms J Johnston
Solicitors:
Appellant: In person
Respondent: Bannerman Solicitors
Independent Children's Lawyer : Ms J Johnston
Case(s) referred to in judgment(s):
T v P [2008] FCWA 145
TET v SP [2009] WASCA 101
TET v SP [No 2] [2009] WASCA 144
JUDGMENT OF THE COURT: This appeal comes before the court today pursuant to a notice by the Registrar under r 12 of the Supreme Court (Court of Appeal) Rules 2005 (WA) requiring the appellant to show cause why the appeal should not be dismissed, pursuant to r 43(2)(g)(ii), for failure to file and serve an appellant's case which complies with the requirements of r 32. The appellant is acting in person in the appeal.
The history of the appeal
The appellant appeals against a decision of the Family Court made on 12 December 2008: T v P [2008] FCWA 145. In those proceedings, there was a dispute between the appellant, who is the mother of the respondent, as to whether the respondent's 8‑year‑old child should live with the appellant (her grandmother) or the respondent. Penny J concluded that the child's best interests would be served by continuing to reside with her mother. Her Honour concluded that the child should be protected from the appellant's negative opinion of the respondent and was not satisfied that, in the circumstances that then prevailed, it would be in the child's best interests to spend time with the appellant, even in a supervised environment. Her Honour said that if the appellant underwent counselling and could prove that she would be able to support her daughter's relationship with the child, the issue could be revisited at a latter time.
The appeal notice was filed on 23 January 2009. The appellant's case was due to be filed on 27 February 2009.
On 9 April 2009, the appellant filed an application for an extension of time within which to file the appellant's case. The application came before Newnes JA on 15 May 2009 but there was no appearance by the appellant. It was adjourned to 12 June 2009. The appellant was notified of the adjournment by the Court of Appeal Office.
On 12 June 2009, the appellant again failed to appear. On that occasion, an order was made extending the time for the filing of the appellant's case to 24 July 2009. The appellant was also ordered to file and serve an amended notice of appeal identifying the judgment under appeal. See TET v SP [2009] WASCA 101. The appellant was notified of the order and a copy of the published reasons forwarded to the appellant by the Court of Appeal Office.
An amended notice of appeal was filed but the appellant's case was not filed by 24 July 2009.
On 28 July 2009, the appellant applied, among other things, for a further extension of time within which to file the appellant's case. That application came before Newnes JA on 7 August 2009. At that hearing, it appeared that the appellant was under the mistaken belief that she had to obtain copies of certain documents which had been subpoenaed in the Family Court proceedings and attach them to the appellant's case. In the course of the hearing it was explained to the appellant that that was not required and she was referred to the provisions of r 32. In granting an extension of time, Newnes JA said:
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.
The time for the filing of the appellant's case was extended to 28 August 2009. See TET v SP [No 2] [2009] WASCA 144.
The appellant's case was not filed by 28 August 2009.
The matter came on again before Newnes JA on 28 August 2009. On that occasion, the appellant said she now had a lawyer and 'her appeal' was 'almost finished'. She sought a further 14 days to file the appellant's case. His Honour ordered that unless the appellant file and serve the appellant's case on or before 11 September 2009, the appeal be dismissed.
On 11 September 2009, the appellant filed a document described as the appellant's case. The document was not in the form specified in r 32. It contained grounds of appeal which included a great deal of argumentative and scandalous material. It was alleged, for example, in par 8 of the grounds of appeal that the trial judge 'was herself exceptionally cruel and bias [sic] by the way in which the [trial judge] treated the appellant and that the [trial judge] should have declared the trial a mistrial'. It continued:
The appellant is of the opinion the [trial judge] has tried to suppress the corruption that has gone on within this FACW process.
In addition, the document did not contain the appellant's submissions and legal authorities. The appellant was obviously aware that the appellant's case was required to include those documents as there was a notation on the filed document that the appellant sought until 14 September 2009 to file her submissions and legal authorities. As it turned out, they were not filed by that date and have still not been filed.
The matter came before Newnes JA for directions on 25 September 2009. His Honour ordered that the matter be adjourned to 23 October 2009 to hear argument on whether the appeal had been dismissed by operation of the springing order made on 28 August 2009. The hearing date of 23 October 2009 was subsequently vacated and the matter relisted for 13 November 2009.
On 29 October 2009, the Court of Appeal Registrar issued a notice under r 12 of the Court of Appeal Rules, returnable today, requiring the appellant to show cause why the appeal should not be dismissed for failure to file and serve an appellant's case that complied with r 32.
Determination of the notice
It is unnecessary to consider whether the appeal has been dismissed by reason of the springing order made on 28 August 2009. It appears from what the appellant has said today that she does not wish to proceed with the appeal. In any event, it should be dismissed under r 43(2)(g)(ii) for failure to file and serve an appellant's case which complies with the requirements of r 32. It is over eight months since the appellant's case was due to be filed. It is obviously important that, subject to reasonable exceptions, the time limits specified in the rules are adhered to so as to ensure that appeals are disposed of in a timely and efficient way. The appellant has been granted considerable indulgence in that respect. But, making all reasonable allowances for the fact that the appellant is acting in person, the point has been reached where no further indulgences can be granted. The appellant has been given every reasonable opportunity to meet her obligations under the rules of the court and has failed to do so. In the circumstances, the appeal should be dismissed.
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