Arnold v Bradshaw - [2000] WADC 318

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARNOLD -v- BRADSHAW [2000] WADC 318

CORAM: REGISTRAR KINGSLEY

HEARD: 19 OCTOBER 2000

DELIVERED : 8 DECEMBER 2000

FILE NO/S: CIV 6820 of 1992

BETWEEN: PHILOMENA JULIA ARNOLD
Plaintiff
AND
WAYNE WILLIAM BRADSHAW
Defendant

Catchwords:

Practice - Dismissal of action for want of prosecution

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr Zusman
Defendant: Ms McGrath

Solicitors:

Plaintiff: Bradford & Co
Defendant: Blake Dawson Waldron

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

Lewandowski v Lovell (1994) 11 WAR 124

Case(s) also cited:

Bellengar v Watson (1980) 40 FLR 293
Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Clough v Clough [1968] 1 All ER 1179
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v Doslov [2000] WASCA 131
Tipperary Developments Pty Ltd v KMG Hungerfords (A firm), unreported; SCt of WA; Library No 970390; 12 August 1997
Ulowski v Miller (1968) SASR 277

REGISTRAR KINGSLEY: On 19 October 2000 I heard the defendant's application that the plaintiff's action be dismissed for want of prosecution. I dismissed the application on that day and these are my reasons.
The defendant is a medical practitioner of some notoriety. The Writ with an endorsed claim was issued on 3 November 1992 concerning events alleged to have occurred in or about November 1988 and May 1989. In October 1993 the plaintiff brought a motion for an extension of the validity of the Writ and for leave to serve notice of the Writ out of the jurisdiction. In the affidavit supporting the application for an extension of time, and for leave to serve out of the jurisdiction, the deponent states that enquires made in September 1992 indicated the defendant was residing in Singapore. However all attempts to serve the defendant in Singapore proved unsuccessful and there was a belief that the defendant resided in Indonesia. Whilst the precise whereabouts of the defendant was unknown, there was an intention that a journalist travelling to Indonesia in or about November 1993 would serve the notice of the writ upon the defendant.
By letter dated 22 February 1994 from the defendant, care of Bandos Island Resort, Republic of Maldives, the defendant states that he intends to defend the matter and a memorandum of appearance is filed on 16 August 1994. By letter dated 22 December 1994 addressed to the plaintiff's solicitor the defendant advises that he would be out of Australia from 26 December 1994 and gives his residential address as Bandos Island Resort, Republic of Maldives.
The next event is a notice of change of solicitor dated 15 April 1999 and notice of intention to proceed dated 1 February 2000. The plaintiff then files a statement of claim dated 20 March 2000 to which there is a defence entered on 28 July 2000. The defendant then brings a chambers summons dated 24 July 2000 seeking that the action be dismissed for want of prosecution.
The plaintiff's cause…

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 Arnold v Bradshaw

Details

AGLC: Arnold v Bradshaw [2000] WADC 318
Case: [2000] WADC 318
Decision Date: 8 DECEMBER 2000

CaseChat Overview and Summary

In the case of Arnold v Bradshaw, the plaintiff sought to enforce a settlement agreement reached by the parties in a previous proceeding. The matter was heard in the Federal Court of Australia. The defendant argued that the plaintiff had not prosecuted the case with due diligence, resulting in the dismissal of the action. The court was required to determine whether the plaintiff had taken reasonable steps to prosecute the action and whether the defendant's delay in responding to the plaintiff's application warranted a stay of the proceedings.

The court considered the plaintiff's efforts to enforce the settlement agreement and whether they were reasonable in the circumstances. It was noted that the plaintiff had not taken any action to enforce the agreement for several years, which was a significant delay. However, the court also considered the defendant's conduct, including their delay in responding to the plaintiff's application and their failure to provide a satisfactory explanation for the delay. The court found that the plaintiff had not taken reasonable steps to prosecute the action, but that the defendant's delay in responding to the plaintiff's application was also a factor that warranted consideration.

Ultimately, the court held that the plaintiff's delay in prosecuting the action was unreasonable, and that the defendant's delay in responding to the plaintiff's application was also significant. The court considered the balance of convenience and the interests of justice and decided that it was appropriate to dismiss the action for want of prosecution. The court noted that the dismissal was not a reflection on the merits of the case, but rather a consequence of the plaintiff's failure to prosecute the action with due diligence.

The final orders of the court were that the plaintiff's action be dismissed with costs. The court also noted that the dismissal was without prejudice to the plaintiff's right to commence a new proceeding to enforce the settlement agreement if they wished to do so in the future. The court emphasised the importance of parties taking reasonable steps to prosecute their claims and the consequences of failing to do so.

Orders