Arcadia Holdings Pty Ltd v Brown - [2002] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ARCADIA HOLDINGS PTY LTD & ANOR -v- BROWN & ORS [2002] WASC 44

CORAM: MASTER SANDERSON

HEARD: 27 FEBRUARY 2002

DELIVERED : 18 MARCH 2002

FILE NO/S: CIV 2110 of 1994

BETWEEN: ARCADIA HOLDINGS PTY LTD
First Plaintiff
ALL STATES AUTO IMPORTS PTY LTD
Second Plaintiff
AND
ROBERT BROWN
First Defendant
JOHN BUTTON
Second Defendant
DENNIS McLENNAN
MAXWELL HUNTINGTON
STEVEN ALLEN
Third Defendants
COMMONWEALTH OF AUSTRALIA
Fourth Defendant

Catchwords:

Practice and procedure - Application to strike out for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Application dismissed - Application allowed to proceed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr P A Kyle
Second Plaintiff            :     Mr P A Kyle
First Defendant             :     Mr M J McCusker QC & Mr P R Macliver
Second Defendant         :     Mr M J McCusker QC & Mr P R Macliver
Third Defendants          :     Mr M J McCusker QC & Mr P R Macliver
Fourth Defendant          :     Mr M J McCusker QC & Mr P R Macliver

Solicitors:

First Plaintiff                :     Kyle & Company
Second Plaintiff            :     Kyle & Company
First Defendant             :     Australian Government Solicitor
Second Defendant         :     Australian Government Solicitor
Third Defendants          :     Australian Government Solicitor
Fourth Defendant          :     Australian Government Solicitor

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

Arcadia Holdings Pty Ltd & Anor v Brown & Ors [1999] WASC 267
Birkett v James [1978] AC 297
Duke v Royalstar Pty Ltd [2001] WASCA 273
Hughes v Gales (1995) 14 WAR 434
Latrobe Country Credit Co‑operative Ltd v Smith & Ors (1999) 1 VR 440
Ulowski v Miller [1968] SASR 277

Case(s) also cited:

Nil

MASTER SANDERSON: This is the defendants' application to strike out the plaintiffs' action for want of prosecution. (Although the second defendant is still named in these proceedings the action against him has come to an end. This application is brought by the first, third and fourth defendants.) To put the application in perspective I will provide a brief chronology of significant events since the issue of the writ in late 1994. In fact, the defendants' application focuses in particular on the plaintiffs' failure to take any significant steps in the action in the later 12 months or so. However, that period of delay has to be seen against the background of the conduct of the proceedings as a whole.
The following chronology is taken from an amended chronology filed by the defendants. (I have omitted what the defendants say is the period of delay between each step. It is acknowledged that some periods of delay were occasioned by the defendants and to include all periods can give a misleading impression.)

DATE EVENT

Institution of Proceedings

16.11.94 Writ issued.

03.02.95     Chamber Summonses For Summary
-                 Judgment and to Extend Time for Filing
                  Defence.

28.02.95 Defence (First Defendant).

11.04.95 Consent Orders dismissing Application for
Summary Judgment.

17.07.95     Chamber Summons for Leave to Join
                  Second, Third and Fourth Defendants and
                  To Amend Statement of Claim.

21.07.95 Consent…

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: [2002] WASC 44
Decision Date

CaseChat Overview and Summary

Arcadia Holdings Pty Ltd and All States Auto Imports Pty Ltd (plaintiffs) brought an action against Robert Brown, John Button, Dennis McLennan, Maxwell Huntington, Steven Allen, and the Commonwealth of Australia (defendants). The defendants applied to strike out the plaintiffs' action for want of prosecution. The application turned on the plaintiffs' failure to take any significant steps in the action over the later 12 months. However, this period of delay had to be seen against the background of the conduct of the proceedings as a whole. The court considered five paramount matters: (1) the length of the delay, (2) the explanation for the delay, (3) the hardship to the plaintiff if the action was dismissed and the cause of action left statute-barred, (4) the prejudice to the defendant if the action was allowed to proceed notwithstanding the delay, and (5) the conduct of the defendant in the litigation. The court found that the delay was unjustifiable and unexplained, and the plaintiffs could have put their pleading to rights more expeditiously. However, the consequences for the plaintiffs if the action was dismissed would be significant. Although the defendants would undoubtedly suffer a general prejudice, they had not suffered any particular prejudice. The court determined that this application ought to be dismissed and the action allowed to proceed, but warned that any further delay would be intolerable. The parties would be heard with respect to costs.

Orders