Thursday, March 29, 2012

CACV144OF2011 IS AN APPLICATION FOR THE STAY OF THE FILING OF APPELLANT'S CASE UNTIL THE JUDICIAL REVIEW IN CIV 1275 OF 2012 IS FINALLY DETERMINED


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 _____
 THE SUPREME COURT OF
WESTERN AUSTRALIA
COURT OF APPEAL

CACV 144 of 2011
MAURICE FREDERICK LAW
and
MICHELE-MARIE GANNAWAY
PULLIN JA
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 22 FEBRUARY 2012, AT 11.30 AM
The appellant appeared in person.
MR C.P. STOKES appeared for the respondent.
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(s&c)
THE ASSOCIATE:   In the Supreme Court of Western Australia, Court of Appeal, Law and Gannaway, CACV 144 of 2011.
PULLIN JA:   Now, Mr Law, you are appearing on your own behalf?
LAW, MR:   Yes, sir.
PULLIN JA:   All right, thank you.  Take a seat.  Mr Stokes?
STOKES, MR:   If your Honour pleases, for the respondent.
PULLIN JA:   All right, thank you.  Now, Mr Law, this has been listed because you have made an application, which you call an application for a stay of the filing of the appellant's case.  I understand that really you are wanting an extension of time in which to file the appellant's case because the rules specify a date for filing of it and you want to delay that until something else has happened?
LAW, MR:   Yes, sir.
PULLIN JA:   There is something else which is apparently an application that you are making for judicial review and removal of the errors of law apparent on the court records in the general division of this court.  Is that right?
LAW, MR:   Yes, I think that's right.
PULLIN JA:   I understand that that application is an application to review various judgments.  Does it include the judgment that is being appealed from in this appeal, the judgment of Judge Sweeney?
LAW, MR:   Yes.
PULLIN JA:   Okay, and it also purports to seek a review by a single judge in the general division of some decisions of the Court of Appeal.  Is that correct?
LAW, MR:   Yes, sir.
PULLIN JA:   All right, and I understand from within the court that that application might have been rejected by the principal registrar.  Is that correct?
LAW, MR:   Yes, sir.
PULLIN JA:   In other words, you can't file it unless you get the leave of a judge in the general division.  Is that right?
LAW, MR:   Yes, sir.
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PULLIN JA:   You intend proceeding with that application, do you?
LAW, MR:   Yes, please.
PULLIN JA:   All right.  That is something you will be doing in the general division and that is for the general division to deal with, but there is no reason why this appeal can't be disposed of.  You are seeking a review.  You are getting a review if you appeal against the judgment that you are concerned with in this case which is the judgment of Judge Sweeney dated 8 November 2011.  Why would you want to delay getting the review in a place where you definitely can get it and where you have filed a document; namely, the appeal notice?
LAW, MR:   There's four judges which we're appealing the decision of because of our fresh and new evidence, and those judgments were handed out without knowledge of this evidence and if we can review those decisions ‑ ‑ ‑
PULLIN JA:   You are seeking, if I can use the term loosely, to review the decision of Judge Sweeney in this appeal?
LAW, MR:   Yes.
PULLIN JA:   You are appealing against it.  You are seeking to appeal against her decision.
LAW, MR:   Yes, sir.
PULLIN JA:   You don't have any trouble with that in the sense that you have been able to file an appeal notice.  Why would we not get on with the appeal and deal with it?
LAW, MR:   I'm sorry, sir.  I just can't quite hear.
PULLIN JA:   Why shouldn't we get on with the hearing of this appeal?
LAW, MR:   Okay, let's get on with the appeal.
PULLIN JA:   All right.  In that case we would dismiss your present application and give you a bit more time to file the appellant's case.  How long would you need to file the appellant's case?
LAW, MR:   I have some medical procedures lined up.  Could I put it off till 16 or 17 March?
PULLIN JA:   All right.  This was an appeal filed when?  When did you file the notice?
LAW, MR:   Sir, you have the copy of the papers that I have filed for today.
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PULLIN JA:   November, all right, so you are wanting, say, 17 March, are you?
LAW, MR:   Yes, please.
PULLIN JA:   All right.  Mr Stokes, what do you say about that?
STOKES, MR:   We certainly want to find out what the grounds of the appeal are, so if it's four weeks, which that appears to roughly be, we couldn't object to that in the circumstances.
PULLIN JA:   Yes, all right, thank you, Mr Stokes.  We don't want to have to come back again.  Are you certain that you can deal with it in that time, file the appellant's case within that time?
LAW, MR:   Very much so.
PULLIN JA:   Should we make a springing order?  Do you know what a springing order is?  That is, if you don't do it by the 17th, don't file and serve the appellant's case by
17 March, the appeal will be dismissed?
LAW, MR:   Very good.  One request in that sentence there:  I've had terrible trouble getting transcripts, and for me to remember the actual business that I have to attain to, can I request expediated transcript of today?
PULLIN JA:   Of today?
LAW, MR:   Yes, it's just to have it looked in my face so that I can ‑ ‑ ‑
PULLIN JA:   We will arrange to get the transcript, but that's not going to in any way affect the preparation of the appellant's case.
LAW, MR:   No.
PULLIN JA:   You will need to get on with that straightaway.
LAW, MR:   Yes, sir, I will.
PULLIN JA:   We will provide you with a copy of the transcript.  It might take a few days before it comes.
LAW, MR:   That's beautiful.
PULLIN JA:   All right, so do you understand what a springing order is?  That is, we will give you until 4 pm on 17 March, which is a Saturday, so why don't we give you until the following Monday, the 19th?  All right?
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LAW, MR:   Yes, sir.
PULLIN JA:   So is this clear in your head?  If by 4 pm on 19 March you have not filed and served on the other side the appellant's case, the appeal will be dismissed.  All right?
LAW, MR:   Very good, thank you.
PULLIN JA:   You are familiar with - you have been in cases before in this court, I know, because I have seen you before, so you should know what you have to do to file the appellant's case?
LAW, MR:   Once seen never forgotten.
PULLIN JA:   All right, so the order will be that the appeal is dismissed unless by 4 pm on 19 March 2012 the appellant files and serves the appellant's case.  Is that clear?
LAW, MR:   Yes, sir.
PULLIN JA:   Okay.
LAW, MR:   I am waiting on two procedures to go to the hospital provided that they have booked me in.  These things, you have no idea when they are going to come on.  They are supposed to give me a month's notice.
PULLIN JA:   I would suggest you get on to this today, the preparation of the appellant's case, and then it will be all finished.  If you file it well before the 19th, you won't - if you leave it until two days before the 19th and run into trouble getting it filed or suddenly get called into hospital, your appeal will be dismissed.
LAW, MR:   I promise that I will attend to it straightaway.
PULLIN JA:   All right.  Are there any costs complications?
STOKES, MR:   I do seek the costs of today, your Honour.
PULLIN JA:   All right.  Is there any reason why the respondent shouldn't have the costs given that they have been brought down here and you have said more or less you agree that you should get on with the appeal?
LAW, MR:   I would object to the costs because I have done the same thing.  I have come hoping that it can be extinguished but because there are important factors, I have had to postpone it.  What do we do?  Tax the costs?
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PULLIN JA:   What order would you seek, Mr Stokes?
STOKES, MR:   Rather than tax it, I was simply going to ask for a standard amount of $380 for the costs of today rather than go to the cost of taxation.
PULLIN JA:   All right, that sounds reasonable, Mr Law.
LAW, MR:   All right.
PULLIN JA:   All right, the appellant do pay the respondent's costs of this application fixed at $380.  All right, thank you, Mr Law.
LAW, MR:   Would you like a copy of the papers that I have brought in today?
PULLIN JA:   What papers do you want to ‑ ‑ ‑
LAW, MR:   These are what I served on Mr Stokes and I left at the appeals office.
PULLIN JA:   But what documents are they?
LAW, MR:   Submission and an affidavit and other evidence that weighs up my case against the procedures that have been going on, the inquiry into the judges' decisions.
PULLIN JA:   This court is only interested in whether or not an error has been made by the judge in question here or whether there has been a miscarriage of justice in relation to the judgment under review in this appeal.
LAW, MR:   Right.
PULLIN JA:   Right, so we have made the orders and the court will now adjourn.
LAW, MR:   Thank you.
AT 11.40 AM THE MATTER WAS ADJOURNED ACCORDINGLY















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1 comment:

  1. MAURICE LAW SAYS: CACV 5 OF 2012 WAS FILED ON 30.1.2012 AGAINST THE REFUSAL OF DISTRICT COURT JUDGE O'NEAL TO SUSPEND DCJ SWEENEY'S COSTS ORDER DATED 8.11.2011 PENDING THE DETERMINATION OF THE JUDICIAL REVIEW IN CIV 1275 OF 2012.

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