Copyright in this
document is reserved to the State of Western
Australia
WESTERN AUSTRALIA
COURT OF
APPEAL
CACV 144 of 2011
MAURICE
FREDERICK LAW
and
MICHELE-MARIE
GANNAWAY
PULLIN JA
TRANSCRIPT OF
PROCEEDINGS
AT PERTH
The appellant
appeared in person.
MR C.P.
STOKES appeared for the respondent.
22/2/12 1
(s&c)
THE ASSOCIATE: In the Supreme Court of Western Australia,
Court of Appeal, Law and Gannaway, CACV 144 of 2011.
PULLIN JA: All right, thank you. Take a seat.
Mr Stokes?
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.
22/2/12 LAW, MR 2
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.
22/2/12 LAW, MR 3
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?
22/2/12 4
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.
22/2/12 6
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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