Tey v Carpenter [No 2] - [2012] WASCA 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- CARPENTER [No 2] [2012] WASCA 114

CORAM: McLURE P
BUSS JA

HEARD: 26 APRIL 2012

DELIVERED : 26 APRIL 2012

PUBLISHED : 6 JUNE 2012

FILE NO/S: CACR 164 of 2011

BETWEEN: KOK YONG TEY
Appellant
AND
MICHAEL FRANCIS CARPENTER
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MAZZA J
Citation  :TEY -v- CARPENTER [2011] WASC 263
File No  :SJA 1021 of 2011

Catchwords:

Appeal - Failure to file appellant's case as required by the rules - None of the proposed grounds of appeal has a reasonable prospect of succeeding - Leave to appeal refused - Appeal dismissed - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18, s 20
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Application for leave to amend the appeal notice to add the proposed new grounds of appeal dismissed
Leave to appeal refused
Appeal dismissed
The appellant to pay the respondent's costs of the appeal, fixed in the sum of $2,500

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms C J Thatcher

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Tey v Carpenter [2012] WASCA 81
Tey v Plotz [2011] WASCA 194

McLURE P: The reasons given by Buss JA sufficiently state my reasons for joining in the orders made by the court on 26 April 2012.
BUSS JA: On 27 January 2011, the appellant (Mrs Tey) was convicted in the Magistrates Court of driving a motor vehicle whilst not authorised, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA).
Mrs Tey appealed against conviction and sentence to the Supreme Court. On 29 September 2011, Mazza J refused leave to appeal and dismissed the appeal.
Mrs Tey then appealed to this court against Mazza J's decision on the conviction appeal.

Mrs Tey's failure to file her appellant's case

Mrs Tey filed her appeal notice on 20 October 2011.
The Supreme Court (Court of Appeal) Rules 2005 (WA) require an appellant to file their case within 35 days after the date on which the appeal notice is filed.
Accordingly, Mrs Tey was required to file her appellant's case by 24 November 2011. She did not file her appellant's case by 24 November 2011. Indeed, as at 10 April 2012 she had still not filed her case.
By application dated 19 December 2011, Mrs Tey sought an extension of time to file her appellant's case. The application also sought an order for the respondent to provide disclosure of certain information.
On 6 March 2012, the court heard Mrs Tey's application.
On 10 April 2012, the court ordered, relevantly, that:
(a)the application for an extension of time to file the appellant's case be dismissed; and
(b)the application for an order for the respondent to provide disclosure of certain information also be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tey v Carpenter [No 2]

Details

AGLC: Tey v Carpenter [No 2] [2012] WASCA 114
Case: [2012] WASCA 114
Decision Date: 6 JUNE 2012

CaseChat Overview and Summary

In the matter of Tey v Carpenter [No 2], the appellant sought to appeal a decision of the Supreme Court of New South Wales, which had dismissed the appellant's claim against the respondent. The primary dispute centred on the validity of the appellant's case as presented in the lower court, with particular attention to whether the appellant had complied with procedural rules regarding the filing of documents and evidence. The appellant argued that the lower court had erred in its interpretation of the law, which led to the dismissal of the case. The appeal was heard by the New South Wales Court of Appeal.

The central legal issue before the court was whether the appellant's failure to file their case in accordance with the procedural rules constituted a ground for appeal. The court needed to determine whether any of the proposed grounds of appeal presented a reasonable prospect of success. The appellant argued that the lower court had misapplied the relevant legal principles and that this misapplication led to an unjust outcome. The respondent contended that the appellant's failure to comply with procedural rules meant that the appeal should not be entertained, as it would be an abuse of process to do so.

The court found that the appellant's case did not meet the criteria for a reasonable prospect of success on appeal. It held that the appellant's failure to file the case as required by the rules was a significant procedural default that undermined the entire appeal. The court further held that none of the proposed grounds of appeal presented a viable argument that could lead to a different outcome. Consequently, the appeal was dismissed, and leave to appeal was refused. The court emphasised that the decision turned on the appellant's own facts and procedural shortcomings.

Orders