Tucker v Centrelink Joondalup
[2011] WASCA 184
•26 AUGUST 2011
TUCKER -v- CENTRELINK JOONDALUP [2011] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 184 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:56/2011 | 26 AUGUST 2011 | |
| Coram: | PULLIN JA MURPHY JA | 26/08/11 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRIGITTE MARGARETE TUCKER CENTRELINK JOONDALUP MAGISTRATE COURT JOONDALUP |
Catchwords: | Application for leave to appeal Noncompliance with the Supreme Court (Court of Appeal) Rules 2005 (WA) Whether reasonable prospects of success Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TUCKER -v- CENTRELINK JOONDALUP [2011] WASCA 184 CORAM : PULLIN JA
- MURPHY JA
- Appellant
AND
CENTRELINK JOONDALUP
Respondent
- Appellant
AND
MAGISTRATE COURT JOONDALUP
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
File No : CIVO 1022 of 2011, CIVO 1023 of 2011
Catchwords:
Application for leave to appeal - Noncompliance with the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether reasonable prospects of success - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
CACV 56 of 2011
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
CACV 57 of 2011
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Nil
(Page 4)
1 PULLIN JA: These appeals have been listed as a result of a Registrar's Notice to Attend, which advises the appellant that the purpose of the hearing is to consider whether the appeals should be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) because there are no grounds of appeal which have a reasonable prospect of succeeding and because of noncompliance with the rules. In each appeal the order appealed against is an order of Judge Wager dated 14 March 2011, refusing the appellant leave to commence proceedings in the District Court by two writs. The first, District Court CIVO 1022 of 2011, was a writ which the appellant wished to issue against Centrelink Joondalup, indorsed with a statement of claim which read:
In 2003 I lodged a compensation claim form with the Joondalup Centrelink office.
Centrelink ignored this claim.
The Freedom of Information file Centrelink gave me was not the original (Centrelink legal services had my original file as I had to find out much later).
I could not read the file I received. I needed to ask the welfare advocate (Perth) for help.
The Social Security Appeals Tribunal ignored what my issue was about, as did Centrelink.
• the AAT decided and gave Centrelink the direction to find that the back payment I applied for is owed to me.
• I received my back payment, but my compensation claim has been ignored since 2003 Aug.
AND THE PLAINTIFF CLAIMS:
Compensation for everything I lost while Centrelink withheld the back payment from me and discriminating me.
2 The other proposed writ was in CIVO 1023 of 2011. This was a writ which the appellant wished to issue against the Joondalup Magistrates Court, indorsed with a statement of claim which read:
• I the Plaintiff was born on the 20.11.56 and was at most material times a sole parent receiving a sole parent pension.
• On the 10th of Dec 2004 the order for termination of my family's rental was made no jo/2004 - 002 785
(Page 5)
- • On the 14th Dec 2004 the Bailiff gave me the Warrant of Possession on the 17th Dec 2004
• As a result of the eviction my family was homeless and since - we are 'secondary homeless'
• Before and at the time of the eviction I was very unwell.
• Being homeless with my two children made me very ill and left me with constant hatred and I suffered unbearable pain. Twice I was hospitalised.
• I needed to see a general practitioner on a regular basis.
• My children lost trust in me
• My daughters and my sons schooling was very much affected
• I could not work and my pottery work I have had was in progress and worth $3000-4000; it was destroyed.
• The Magistrate did not release the bond for the rent that was outstanding on the 3rd Dec 2004.
• I can not remember receiving an adjournment notice.
• The police and Bailiff took me away from my children and kept me at the Joondalup hospital to see a psychiatric team, this took all day
• My daughter was fourteen at the time and I was responsible for her.
• I was made completely dysfunctional as a mother and carer for my family I had to accept help from a friend who was not able to do so …
• My belongings were thrown into the rubbish bin and my late husband's art on paper ripped and torn to garbage.
• I could not look or work under these circumstances and was no longer responsible for my future commitments and liabilities and consequently lost everything I could not pay for my mining lease and I want the court to pay damages.
AND THE PLAINTIFF CLAIMS:
Compensation and an apology
3 The appellant presented the two writs in the District Court on 4 February 2011. The registrar of the District Court refused to issue the writ. The registrar, by letter dated 9 February 2011, wrote to the appellant in the following terms:
(Page 6)
- Dear Ms Tucker
DISTRICT COURT WRITS AGAINST CENTRELINK AND THE JOONDALUP MAGISTRATES COURT
On 4 February 2011 you sought to lodge two writs of summons in the District Court, one against Centrelink and the other against the Joondalup Magistrates Court.
Pursuant to Rules of the Supreme Court 1971 (WA) ('RSC'), which apply in the District Court, I have refused to issue each writ pursuant to Order 67 rule 5(1). That rule provides:
If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the Registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a Judge or a Master first had and obtained by the party seeking to file or issue it.
Both writs appear to me to be an abuse of process or frivolous. In relation to Centrelink, you appear to be seeking orders to compel Centrelink to assess your compensation claim. The District Court does not have jurisdiction to make an order of this kind against Centrelink. In relation to the Joondalup Magistrates Court, you appear to be asking for compensation based on decisions of that court that you do not agree with. The appropriate way to challenge a decision of a Magistrate is to commence an appeal against the decision.
In addition, both actions appear to relate to events that occurred more than 6 years ago. Another issue that the Judge may want to be satisfied about before granting you leave to issue each writ is that, if there is a cause of action that can be commenced in the District Court, the action is not out of time and barred pursuant to the Limitation Act 1935 (WA) or the later Limitation Act 2005 (WA).
Pursuant to RSC Order 67 rule 5(1) I have listed the questions of whether you ought to have leave to issue each writ for hearing before a Judge on Monday 14 March 2011 at 11.00am. The hearing will be what is known as an 'ex parte' hearing so it will not be necessary for you to serve either defendant, nor will they be present at the hearing.
If you wish the Judge to take into account any other information in determining whether to grant you leave, you should file an affidavit by no later than 7 March 2011.
4 The question of whether leave would be granted came before Judge Wager on 14 March 2011 and her Honour made orders in each case refusing leave.
(Page 7)
5 The appellant has now instituted appeals against the two orders. In July 2011 the appellant filed the appellant's case. In the appeal against CIVO 1022, under the heading 'Grounds of Appeal' the word 'discrimination' appears. There are no submissions as required by the rules. There is only a list of letters and a reference to a Social Security Appeals Tribunal appeal number. Under the heading 'Orders wanted' the words appear 'compensation, I want my mining lease back'. In the appeal against CIVO 1023 under the heading 'Grounds of Appeal' the words 'eviction declined' appear and similarly, there are no submissions but a list of letters and documents. There is nothing under the heading 'Orders wanted'.
6 As a result, on 27 July 2011 the Court of Appeal registrar wrote to the appellant in the following terms:
Dear Madam
CACV 56 of 2011 - Tucker v Centrelink Joondalup
CACV 57 of 2011 - Tucker v Magistrate Court Joondalup
On 4 July 2011, you presented for filing in the Court of Appeal Office a document entitled 'appellant's case' in relation to each of the above appeals.
The documents were taken in for checking. I have now reviewed those documents.
The appellant's case is a very important document that sets out the basis of your appeal. I understand that the Court of Appeal Office staff have attempted to explain the requirements to you at some length. However, the documents that you presented for filing do not comply with the requirements of rule 32 of the Supreme Court (Court of Appeal) Rules 2005. They contain no statement of the grounds of appeal [rule 32(4)], no submissions [rule 32(5)], no legal authorities [rule 32(6)] and no draft chronology or clear statement of the relevant facts [rule 32(8)]. The appellant's cases you have filed contain only a short list of documents which appear to be documents that you rely on.
In relation to 'orders wanted' [rule 32(7)], I note that in CACV 56 of 2011, you have stated: 'Compensation, I want my mining lease back.' These are not orders that the Court of Appeal could make on this appeal. In CACV 57 of 2011, there is no statement of 'orders wanted' at all.
You must also make an effort to fill in the draft appeal book indexes [rule 32(9)] which have been provided to you.
Even though you have not complied with the rules as set out above, I have decided on this occasion to accept the document for filing. I must
(Page 8)
- emphasise, however, that in my view the appeal cannot proceed in its current form because there simply is no clear statement of the basis of your appeal. I am therefore giving you an opportunity to correct the problems outlined above by filing an amended appellant's case by 10 August 2011. In doing so, I would urge you to seek legal advice about your claims and about these appeals. My order giving leave to amend the appellant's case is enclosed.
If you choose not to file an amended appellant's case by 10 August 2011 or if you file another appellant's case which appears to be deficient in form and content, the appeals will be listed for you to attend a hearing on 26 August 2011 where the Court will consider whether the appeals should be dismissed under rule 43(2)(g) because there are no grounds of appeal which have a reasonable prospect of succeeding and/or because you have not complied with the rules. You will receive a written notice of this hearing.
If you wish to discontinue the appeals, you should file a Form 16 Discontinuance Notice.
7 Ms Tucker informed this court that she attended in the Court of Appeal office in the week of 8 August 2011 with the letter from the Court of Appeal Registrar dated 27 July 2011 and indicated to a member of staff in the Court of Appeal office that she would not be filing an amended appellant's case or another appellant's case and indicated that she would be attending the hearing today, as has proved to be the case.
8 Every effort has been made to try and ascertain exactly what Ms Tucker's real complaint is. It was not possible based on Ms Tucker's oral submissions to understand why she wishes to commence action proposed against Centrelink Joondalup and the Magistrates Court but, in any event, there is no doubt that the appellant's case has a ground of appeal that has no reasonable prospect of succeeding and, for that reason, both appeals should be dismissed. A further reason for dismissing the appeals is because of noncompliance with the rules referred to in the registrar's letter. And so for those reasons both appeals should be dismissed.
9 MURPHY JA: I agree.
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