Amaca Pty Ltd v Hannell [No 2] - [2011] WASCA 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- HANNELL [No 2] [2011] WASCA 232

CORAM: MARTIN CJ
McLURE P
BUSS JA

HEARD: 7 JUNE 2011

DELIVERED : 26 OCTOBER 2011

FILE NO/S: CACV 15 of 2007

BETWEEN: AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
Appellant
AND
PATRICIA MARGARET HANNELL as Executor of the Estate of DAVID RICHARD HANNELL (Deceased)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :HANNELL -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
File No  :CIV 2412 of 2005

Catchwords:

Appeal - Whether Court of Appeal has jurisdiction or power to reopen and reconsider perfected order made by it in the determination of an appeal on its merits - Reliance on s 16(1)(d)(i) of Supreme Court Act 1935 (WA)

Legislation:

Acts Amendment (Court of Appeal) Act 2004 (WA)
Judicature Act 1873 (UK), s 18
Rules of the Supreme Court 1971 (WA), O 43
Supreme Court (Court of Appeal) Rules 2005 (WA), r 63
Supreme Court Act 1935 (WA), s 3, s 7(1), s 7(4), s 16(1), s 16(1)(d)(i), s 58(1), s 59, s 60, s 61
Supreme Court Ordinance 1861

Result:

Application dismissed

Category: A

Representation:

Counsel:

Appellant: Mr G M Watson SC & Mr D M McKenna
Respondent: Mr G Donaldson SC & Mr M J Magazanik

Solicitors:

Appellant: Jarman McKenna
Respondent: Slater & Gordon

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

Ainsworth v Wilding [1896] 1 Ch 673
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158
Bailey v Marinoff (1971) 125 CLR 529
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Burrell v The Queen (2008) 238 CLR 218
CDJ v VAJ (No 2) (1998) 197 CLR 172
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Flower v Lloyd (1877) LR 6 Ch D 297
Gamser v Nominal Defendant (1977) 136 CLR 145
Grierson v The King (1938) 60 CLR 431
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
In re St Nazaire Co (1879) LR 12 Ch D 88
Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642
Pantzer v Wenkart [2007] FCAFC 27
The State of Western Australia v Wallam [2008] WASCA 117(S)

MARTIN CJ: This application should be dismissed for the reasons given by McLure P, with which I agree.
McLURE P: The respondent/applicant applies to set aside the orders of this court giving effect to its reasons in Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 and, in lieu thereof, seeks an order that the appeal be dismissed or, alternatively, a retrial. The preliminary issue before the court is whether it…

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: [2011] WASCA 232
Decision Date: 26 OCTOBER 2011

CaseChat Overview and Summary

The parties involved in this case were Amaca Pty Ltd and Hannell, with the dispute being heard in the Supreme Court of Western Australia. Amaca Pty Ltd appealed a decision made by the Court of Appeal, which had dismissed their appeal in the original case. Amaca sought to have the Court of Appeal reconsider the merits of its own decision and reopen the case on the basis of s 16(1)(d)(i) of the Supreme Court Act 1935 (WA). The key legal issue was whether the Court of Appeal had the jurisdiction or power to reopen and reconsider its own perfected order made on the merits of an appeal.

The court considered the legislative history and purpose of s 16(1)(d)(i) of the Supreme Court Act 1935 (WA). The court concluded that this section was intended to provide a means for an appellant to seek relief from a final decision made by the Court of Appeal, but not to allow for reconsideration of the merits of that decision. The court found that the power to reopen and reconsider a perfected order on its merits was not available under this section. The court held that it did not have the jurisdiction or power to reopen and reconsider its own perfected order made on the merits of an appeal.

The Supreme Court dismissed Amaca's appeal and affirmed the decision of the Court of Appeal in the original case. The court held that s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) did not confer jurisdiction or power to reopen and reconsider a perfected order made on the merits of an appeal. The court further held that the Court of Appeal did not have the jurisdiction or power to reopen and reconsider its own perfected order on the merits of an appeal. The court's decision was final and binding on the parties.

Orders