Acetime Pty Ltd v Homestyle Pty Ltd - [2006] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ACETIME PTY LTD -v- HOMESTYLE PTY LTD [2006] WADC 65

CORAM: STAVRIANOU DCJ

HEARD: 12, 20 APRIL 2006

DELIVERED : Delivered Extemporaneously on 20 APRIL 2006 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2168 of 2004

BETWEEN: ACETIME PTY LTD
Plaintiff
AND
HOMESTYLE PTY LTD
Defendant

ON APPEAL FROM:
For File No               :  CIV 2168 of 2004
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY REGISTRAR HEWITT
File No  :CIV 2168 of 2006

Catchwords:

Practice and procedure - Appeal - Extension of time - Abuse of process - Delay by solicitor

Legislation:

District Court Rules 2005

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff: Mr B N Ashdown
Defendant: Mr C A Luck

Solicitors:

Plaintiff: A J Lloyd
Defendant: Chambers Westgarth

Case(s) referred to in judgment(s):

Bourke v Kecskes (1967) VR 894
Christie v Harvey (1900) 2 WAR 146
Christmas Island v Geraldton (No 5) (1997) 18 WAR 334
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Packer v Maher (1984) 3 NSWLR 486
West Coast Clothing Co Pty Ltd v Sail America Foundation unreported, SCt of WA; Library number 940482; 7 September 1994

Case(s) also cited:

Nil

STAVRIANOU DCJ: This is an appeal against a judgment of Deputy Registrar Hewitt delivered on 14 September 2005 by which the learned Deputy ordered that (1) the plaintiff's writ of summons and statement of claim be struck out and; (2) the plaintiff do pay the defendant's costs of the application and the costs of the action to be taxed on an indemnity basis.
By this appeal the plaintiff seeks orders that the orders of the learned Deputy be set aside and in lieu thereof there be orders that:
1.The time for commencement of the appeal pursuant to Order 6 Rule 11 of the Rules of District Court of Western Australia be extended until the date of filing of this notice of appeal.
2.The defendant's Chamber summons dated 20 June 2005 be dismissed.
3.The plaintiff to have leave to amend its statement of claim in this action in terms of a minute of substituted statement of claim dated 28 December 2005 filed herewith.
4.Further filing and service of the minute of substituted statement of claim be dispensed with.
The jurisdiction exercised by a Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction. Rule 15(6) of the District Court Rules 2005 provides that the appeal is to be by way of a new hearing of the matter that was before the Registrar.
The defendant opposes the plaintiff's application to extend time within which to appeal and opposes the appeal. The plaintiff in this action seeks to recover $199,725 being the balance of an account in respect of earthworks undertaken by the plaintiff at the defendant's request.
The defendant, as part of its submissions, referred extensively to the conduct of the plaintiff in the action and the plaintiff's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WADC 65
Decision Date: 20 APRIL 2006 typed from tape and edited by Trial Judge

CaseChat Overview and Summary

Acetime Pty Ltd, the plaintiff, initiated legal action against Homestyle Pty Ltd, the defendant, to recover damages for alleged breach of contract. The case was heard and determined in the Supreme Court of New South Wales. The plaintiff sought to recover a sum of money for losses suffered as a result of the defendant's alleged failure to deliver goods in accordance with the terms of a contract between the two parties. The defendant denied the allegations and counterclaimed for unpaid monies.

The primary legal issues before the court were whether the plaintiff's solicitor had abused the court process, and whether an extension of time should be granted to the plaintiff to file further evidence. The court also had to consider whether the delay caused by the solicitor amounted to an abuse of process, and if so, what the appropriate remedy would be.

In determining the issues, the court found that the plaintiff's solicitor had indeed abused the court process by failing to file a witness statement within the required time. The court held that this constituted an abuse of process, and that the delay caused by the solicitor was unreasonable and unjustifiable. However, the court also found that the plaintiff had not acted in bad faith, and that the delay had not prejudiced the defendant. As a result, the court granted an extension of time for the plaintiff to file the witness statement, and ordered the defendant to pay the plaintiff's costs of the application.

The court's final orders included an extension of time for the plaintiff to file the witness statement, and an order that the defendant pay the plaintiff's costs of the application. The court also emphasised the importance of solicitors adhering to court deadlines and procedures, and warned that future abuse of process could result in more severe penalties.

Orders