Saturday, 23 May 2009

Family Court: leave to appeal to Full Court from WA requires 3 judges

In the recent Family Court case of Suiter and Suiter, Justice Thackray had to deal with the issue of whether a single judge of the court could hear a leave to appeal decision from the WA Family Court, or whether it needed to be dealt with by the Full Court.

Thackray J determined that a single judge did not have the power to decide a leave to appeal decision, but had the power to adjourn such an application until the substantive appeal was determined by the Full Court:


Although the wife’s application filed on 8 April 2009 repeated her earlier proposal for the application for leave to appeal to be dismissed, there is no basis upon which I can make such an order as a single Judge.
Section 94AA provides that an application for leave to appeal from “a prescribed decree” of a State Family Court is to a Full Court of the Family Court. The orders which are the subject of the application for leave to appeal here fall within that category. The only relevant exception to this provision is contained in s 94AA(2), which permits a single Judge to dispose of an application for leave to appeal by consent.
I do, however, consider I have jurisdiction to deal with the other aspect of the wife’s application, namely the adjournment of the application for leave to appeal until the substantive proceedings are resolved. Section 94(2B) provides that a Judge of the Appeal Division (or another Judge if there is no Judge of the Appeal Division available) may, amongst other things, give directions about the conduct of an appeal. Section 94(2D)(h) provides that “Applications of a procedural nature,, including applications... to adjourn the hearing of an appeal” may be heard and determined by a Judge of the Appeal Division (or another Judge if there is no Judge of the Appeal Division available).
It will be observed that s 94(2D)(h) refers to the adjournment of appeals and not applications for leave to appeal. It is sufficiently clear, however, that the legislative intention is that the powers given to single judges in relation to appeals should be read as applying also to applications for leave to appeal. Thus, for example, s 94(2D), which sets out the powers that may be exercised by a single Judge in relation to appeals, also contains a provision relating to extending time for filing of an application for leave to appeal. It could not have been the intention of Parliament that a bench of three Judges would need to be assembled to make all of the many procedural orders necessary concerning an application for leave to appeal.
The outcome
It is in the interests of justice and the orderly disposal of the business of the Full Court for the application for leave to appeal to be postponed until after determination of the substantive proceedings.

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