Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd (No. 4) - [2011] VSC 686

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2005 10032

AUSTRACK INFRASTRUCTURE DEVELOPMENT PTY LTD (ACN 065 271 141) AND ORS (according to the schedule attached)	Plaintiffs
v
SHARVINE PTY LTD (ACN 080 518 396)	First Defendant
- and -
TRANSPACIFIC CLEANAWAY PTY LTD (formerly known as Brambles Australia Limited) (ACN 000 164 938)	Second Defendant

---

JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2011
DATE OF JUDGMENT:	16 December 2011
DATE OF THESE REASONS:	22 December 2011
CASE MAY BE CITED AS:	Austrack Infrastructure Development Pty Ltd and ors v Sharvine Pty Ltd and anor (No. 4)
MEDIUM NEUTRAL CITATION:	[2011] VSC 686

---

PRACTICE AND PROCEDURE-Dismissal for want of prosecution- Inordinate delay established-Not inexcusable due to prior consent by defendants to adjournment-Prejudice established-Application for dismissal refused-Reinstatement of proceedings refused-Security for costs ordered

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	No appearance
For the Defendants	Mr C.P. Young	Thomsons Lawyers

HER HONOUR:

These are reasons for orders I made on Friday, 16 December 2011 in respect of three summonses. The summonses, in the order in which I deal with them in these reasons are as follows:

1.The defendants’ application for dismissal or stay of the proceedings filed 18 March 2011.
2.The plaintiffs’ application to reinstate the proceedings filed 17 October 2011.
3.The defendants’ application for security for costs filed 22 September 2009.

These applications were listed before me pursuant to orders made by me on 7 November 2011. Those orders were the subject of detailed reasons in relation to order 2 (which refused leave to the plaintiffs to be represented by Mr Taylor) which were published on 17 November 2011. Subsequently, as permitted by order 6 made 7 November 2011, Mr Taylor made application for adjournment of the proceedings on medical grounds. I refused that application by orders made 24 November 2011 and gave written reasons also dated 24 November 2011. After those orders were made and reasons published, a further affidavit sworn by Mr Taylor came to my attention purporting to be in reply or seek reconsideration of my decision on the adjournment. For the avoidance of doubt, I considered this affidavit and it was the subject of orders made by me on 9 December 2011 which confirmed my earlier order refusing the adjournment.

Mr Taylor did not attend the hearing on 16 December. At the commencement of the hearing a solicitor appearing on his behalf but not on the record, sought an adjournment to enable that solicitor to consider whether or not to go on the record. I heard that application, treating the solicitor as amicus for that purpose. For reasons set out separately I refused that application and the hearing of the summonses proceeded, undefended as regards the defendants’ summonses and without a prosecutor in respect of the plaintiffs’ summons.

Application for dismissal of the proceedings

The summons was first returnable on 6 April 2011. On that date there was no appearance for the…

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.

Keep reading for free

Create a free CaseChat account to read Austrack Infrastructure Development Pty Ltd v Sharvine Pty L... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] VSC 686
Decision Date: 16 December 2011

CaseChat Overview and Summary

In this case, Austrack Infrastructure Development Pty Ltd filed proceedings against Sharvine Pty Ltd in the Federal Court. The dispute centred around claims of defective construction work. The Court was required to determine whether the proceedings should be dismissed for want of prosecution, specifically considering whether the delay in proceeding with the case was inordinate and whether it caused prejudice to the defendants.

The primary legal issue was whether the plaintiff's delay in prosecuting the case was so excessive that it warranted dismissal. The Court found that the delay was indeed inordinate, as there had been a significant period of inactivity. However, the Court also noted that the defendants had previously consented to the adjournment of the proceedings, which mitigated the delay's inexcusable nature. The Court further determined that the delay had caused prejudice to the defendants, as they had incurred additional costs and lost opportunities. Despite these findings, the Court decided not to dismiss the proceedings but instead ordered the plaintiff to provide security for costs.

The Court's decision was influenced by the balance of the factors considered. While the delay was excessive and prejudicial, the consent to adjournment by the defendants and the overall circumstances of the case led the Court to conclude that dismissal was not warranted. However, the Court deemed it necessary to impose a security for costs to protect the defendants from further financial burden. The Court's decision underscored the importance of timely prosecution of claims while also recognising the complexities and nuances involved in each case.

Orders