Doble v Chaffey Services Pty Ltd

[2023] WASCA 180

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Right of appeal
3. › Exhaustion of right
4. › Whether statutory right of appeal permits second or subsequent appeals against same orders
5. › Whether right exhausted by commencement and discontinuance of first appeal
6. › Supreme Court Act 1935 (WA), s 58(1)
1. Appeal
2. › Cross-appeal
3. › Competency
4. › Whether cross-appeal competent where respondent previously commenced and discontinued appeal against same orders
5. › Whether r 31A(1) creates independent right of appeal
6. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 31A
1. Practice and Procedure
2. › Abuse of process
3. › Proceedings doomed to fail
4. › Incompetent cross-appeal
5. › Distinction between permanent stay and dismissal as incompetent
1. Appeal
2. › Discontinuance of appeal
3. › Effect of deemed dismissal under r 59(1B)
4. › Whether appeal finally dismissed on filing of discontinuance notice
5. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(1B)

Quick Take

A litigant who commences and discontinues an appeal under s 58(1) of the Supreme Court Act 1935 (WA) exhausts their statutory right of appeal and cannot institute a second appeal against the same orders, whether by cross-appeal under r 31A(1) or otherwise. Rule 31A(1) provides only a procedural mechanism for exercising a subsisting statutory right of appeal and does not create an independent right. The question whether the court has power to set aside or permit withdrawal of a discontinuance notice under r 59(1B) was left open.