Tey v Lewis - [2010] WASCA 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- LEWIS [2010] WASCA 91

CORAM: NEWNES JA
MURPHY J

HEARD: 30 APRIL 2010

DELIVERED : 18 MAY 2010

FILE NO/S: CACV 109 of 2008

BETWEEN: KOK YOUNG TEY
Appellant
AND
JOSHUA RICHARD LEWIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :APP 16 of 2008

Catchwords:

Appeal - Dismissal under Supreme Court (Court of Appeal) Rules 2005 (WA) - Appeal has no reasonable prospect of success - Turns on own facts

Legislation:

District Court Rules 2005 (WA), O 54
Rules of the Supreme Court 1971 (WA), O66 r 5
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     In person
Proposed Intervener      :     In person

Solicitors:

Appellant:     In person
Respondent:     In person
Proposed Intervener      :     In person

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

Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58
Michael v Freehill Hollingdale & Page (1990) 3 WAR 223
Michael v Pitt (Unreported, WASCA, Library No 930350, 18 June 1993)
MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tey v Lewis [2008] WASCA 229

JUDGMENT OF THE COURT:

Introduction

The notice of appeal in this matter was filed on 10 November 2008. The notice identifies the decision appealed from as a decision of Wisbey DCJ made on 31 October 2008. No substantive progress was made in the prosecution of the appeal in 2009.
On 11 February 2010, the appellant filed an amended notice of appeal.
On 23 February 2010, Court of Appeal Registrar Eldred made the following orders:
1.The appellant file and serve any application to add Mr Michael McPhee as a second respondent (intervenor) together with an affidavit explaining the circumstances relating to the amendment by 6 April 2010.
2.The appellant file and serve any amended appellant's case by 13 April 2010.
3.The appellant file and serve any application to rely on additional evidence together with an affidavit in support of the application by 13 April 2010.
4.The respondent file and serve any affidavits in response by 20 April 2010.
5.The parties attend before the Court of Appeal on 30 April 2010 at 10:30am ‑
•to consider any applications filed in accordance with this order;
•to consider whether the grounds of appeal in the appellant's case filed on 17 November 2008 or any amended case filed pursuant to this order has a reasonable prospect of succeeding;
•to consider whether the appellant has complied with the Supreme Court (Court of Appeal) Rules 2005; and
•for further directions.
On 15 March 2010, Registrar Eldred wrote to Ms Tey, with a copy of the above orders enclosed. In that letter, the Registrar explained that due to the lengthy delay in the prosecution…

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.

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Details

Case: [2010] WASCA 91
Decision Date: 18 MAY 2010

CaseChat Overview and Summary

In the case of Tey v Lewis, the appellant sought to appeal a decision made by the trial judge. The appeal was dismissed by the Western Australian Supreme Court, Court of Appeal, under the Supreme Court (Court of Appeal) Rules 2005. The trial judge's decision had concluded that the appellant's case was barred by the doctrine of res judicata, as the issues had been determined in a previous proceeding between the parties. The appellant contended that the earlier decision was erroneous and that there were substantial differences between the facts of the two cases that warranted a hearing on the merits.

The central issue for the court to determine was whether the appeal had a reasonable prospect of success. Under the rules, an appeal will only be entertained if it has such a prospect. The court examined the merits of the appeal and considered whether the appeal was based on the appellant's own facts or whether it turned on an error of law that was common to both cases. The court found that the appeal was based on an argument that the previous decision was wrong and that the current case involved different facts. However, the court was of the view that the appeal turned on the same legal issue as the previous case and that there was no reasonable prospect of success based on the appellant's own facts.

The court held that the appeal had no reasonable prospect of success as it was based on an argument that the previous decision was incorrect, rather than an argument that the current case involved unique facts. The court emphasised that the appeal process is not a mechanism for re-litigating cases where the same issues have already been decided. The court noted that the appellant had not demonstrated how the current case involved different facts or circumstances that would warrant a different outcome. The court concluded that the appeal did not have a reasonable prospect of success and dismissed it accordingly.

No further orders were made by the court. The dismissal of the appeal affirmed the trial judge's decision that the appellant's case was barred by the doctrine of res judicata. The appellant was not granted leave to appeal to a higher court, and the previous decision stood as the final determination of the matter.

Orders