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Agapis v Buckland

Agapis v Buckland

Case [2019] WASC 3 8 January 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AGAPIS -v- BUCKLAND [2019] WASC 3
CORAM:   SMITH J
HEARD:   19 DECEMBER 2018
DELIVERED          :   19 DECEMBER 2018
PUBLISHED           :   8 JANUARY 2019
FILE NO/S:   CIV 2874 of 2013
BETWEEN:   RAOUL AGAPIS
Plaintiff
AND
JOHN BUCKLAND
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Practice and procedure - Inactive cases list - Action deemed to be dismissed for want of prosecution - Case dismissed by effect of rules of court - No order or decision from which an appeal will lie

Legislation:

Interpretation Act 1984 (WA), s 5, s 47
Judiciary Act 1903 (Cth), s 78B
Mutual Recognition (Western Australia) Act 2010 (WA)
Mutual Recognition Act 1992 (Cth)
Rules of the Supreme Court 1971 (WA), O 4A, O 4A r 1, O 4A r 24, O 4A r 24(1), O 4A r 25, O 4A r 25(1), O 4A r 25(1)(b), O 4A r 26, O 4A r 27(1), O 4A r 27(2), O 4A r 28, O 4A r 28(1), O 4A r 28(3), O 60A r 2(1), O 60A r 4, O 60A r 4(1), O 60A r 5(5)
Supreme Court Act 1935 (WA), s 155(1), s 167(1)(c)

Result:

Appeal dismissed for want of jurisdiction

Category: B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr E Fearis
Second Defendant	:	Mr E Fearis

Solicitors:

Plaintiff	:	In person
First Defendant	:	State Solicitor for Western Australia
Second Defendant	:	State Solicitor for Western Australia

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

Agapis v A Deputy District Registrar of The Federal Court of Australia at Perth [2016] HCATrans 154
Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth [2015] HCATrans 246
Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045
Agapis v Plumbers Licensing Board [2013] AATA 187
Agapis v Plumbers Licensing Board [2013] FCA 1221
Cribb v Bell [2012] WASC 346
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
O'Connell v The State of Western Australia [2012] WASCA 96
Public Service Association and Professional Officers' Association Amalgamated of New South Wales v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343
R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254
Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329
Rowe v Stoltze [2013] WASCA 92
Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231
Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58

SMITH J:

On 19 December 2018, I made an order dismissing an appeal by Raoul Agapis against a notice given by the Principal Registrar to Mr Agapis on 6 July 2018 in this matter (CIV 2874 of 2013), for want of jurisdiction.

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.

Continue reading Agapis v Buckland

Details

AGLC: Agapis v Buckland [2019] WASC 3
Case: [2019] WASC 3
Decision Date: 8 JANUARY 2019

CaseChat Overview and Summary

In the matter of Agapis v Buckland, the respondent sought an order for the case to be removed from the inactive cases list and for the matter to be listed for directions. The applicant had filed a proceeding in the Federal Circuit Court but failed to take any further action. The proceeding was later placed on the inactive list and deemed dismissed for want of prosecution. The applicant then sought to have the case removed from the inactive list and listed for directions, arguing that they were not negligent and had not abandoned the proceeding. The court was required to decide whether the applicant's application was an appealable order and if it was appropriate to grant the relief sought.

The court noted that the applicant's application was not an appealable order as it was not a decision or order from which an appeal would lie. The dismissal of the proceeding for want of prosecution was a consequence of the rules of court, and there was no order or decision from which an appeal would lie. The court further held that the applicant's argument that they were not negligent and had not abandoned the proceeding was irrelevant as the dismissal was automatic and not based on any fault or negligence on the part of the applicant. The court held that the application was an abuse of process and dismissed the application.

The court did not make any orders as the application was dismissed. The court held that the applicant's application was an abuse of process and that there was no basis for the court to grant the relief sought. The court further held that the applicant had not demonstrated any grounds for the case to be removed from the inactive list and listed for directions. The court held that the dismissal of the proceeding for want of prosecution was a consequence of the rules of court and that there was no order or decision from which an appeal would lie.

Orders