Attorney-General v Argo Pty Ltd - [2001] TASSC 70

[2001] TASSC 70

CITATION: Attorney-General & Anor v Argo Pty Ltd & Ors [2001] TASSC 70

PARTIES:  ATTORNEY-GENERAL (TAS)
  TASMANIAN DEVELOPMENT AUTHORITY
  v

ARGO PTY LTD
WRIGHT, George Peter
NATURELAND OF TASMANIA PTY LTD
TATLOW, Michael Winston

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 58/2000
DELIVERED ON:  29 June 2001
DELIVERED AT:  Hobart
HEARING DATES:  9 March 2001
JUDGMENT OF:  Underwood, Crawford and Blow JJ

CATCHWORDS:

Procedure - Courts and judges generally - Courts - Dismissal of proceedings for want of prosecution - Whether substantial risk of prejudice established.

Closer Settlement Board v Thomas [1982] Tas R 179; Masel v Transport Industries Insurance Co Ltd [1995] 2 VR 328, applied.
Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197, referred to.
Aust Dig Procedure [33]

REPRESENTATION:

Counsel:
             Appellants:  T J Ellis
             Respondents:  J Burnside QC and P A Norris
Solicitors:
             Appellants:  Director of Public Prosecutions
             Respondents:  Abetz Curtis & Worsley

Judgment Number: [2001] TASSC 70
Number of Paragraphs: 49

Serial No 70/2001
File No FCA 58/2000

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
CRAWFORD J
BLOW J
29 June 2001

Orders of the Court

Appeal dismissed

Serial No 70/2001
File No FCA 58/2000

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
29 June 2001

I agree with the reasons for judgment of Blow J and with the order he proposes.
File No FCA 58/2000

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v
ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA
PTY LTD and MICHAEL WINSTON TATLOW

REASONS FOR JUDGMENT FULL COURT
CRAWFORD J

29 June 2001

I have had the advantage of reading the reasons for judgment of Blow J, and subject to one comment, I agree with them and in particular that the appellants failed to discharge the onus of proof which was upon them to show that the justice of the case warranted the dismissal of the action for want of prosecution.

I comment that it is my view that the affidavit of Mr Harry was only used before the learned judge at first instance for a limited purpose, that being expressed by the plaintiffs' counsel as "in so far as it deposes to his enquiries in respect of Mrs Auyeung", and counsel vaguely referred to some parts of it. With the benefit of hindsight, it can confidently be said that it would have been preferable if counsel had read the relevant parts of the affidavit or at least identified them with precision. In any event, I do not accept that the appellants' counsel was entitled to rely on those parts of the affidavit which concerned the possible death of Mr Conyngham, when arguing that the learned judge erred. However, that does…

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 Attorney-General v Argo Pty Ltd

Details

AGLC: Attorney-General v Argo Pty Ltd [2001] TASSC 70
Case: [2001] TASSC 70
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case of Attorney-General v Argo Pty Ltd was heard by the Full Court of the Supreme Court of Tasmania, which was asked to determine whether an interlocutory application to dismiss the plaintiffs' action for want of prosecution should be remitted to a single judge or re-determined by the Full Court itself. The plaintiffs, Argo Pty Ltd, George Peter Wright, Natureland of Tasmania Pty Ltd, and Michael Winston Tatlow, had commenced an action against the defendants, the Attorney-General of Tasmania and the Tasmanian Development Authority, alleging a course of tortious conduct on the part of the defendants. The defendants had applied for the action to be dismissed for want of prosecution, but the application was dismissed at first instance. The defendants appealed from that decision.

The Full Court found that there had been a miscarriage of discretion by the primary judge in his assessment of the prejudice to the defendants and in his inference that the plaintiffs' case was to be proved by documentary evidence rather than admissions. However, the Full Court concluded that the preferable course was for the Full Court itself to re-determine the application, rather than remit it to a single judge, due to the significant further delay and additional costs that would be involved in doing so. The Full Court found that the appellants had not discharged the onus of proof to establish that the justice of the case warranted the dismissal of the action for want of prosecution. The appeal was dismissed, and the orders of the learned primary judge were upheld.

Orders