Bird v Telstra Corporation Ltd - [2019] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BIRD -v- TELSTRA CORPORATION LTD [2019] WADC 100
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   3 APRIL 2019
DELIVERED          :   3 JULY 2019
PUBLISHED           :   24 JULY 2019
FILE NO/S:   CIV 4454 of 2016
BETWEEN:   ELIZABETH ANN BIRD
Plaintiff
AND
TELSTRA CORPORATION LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court 1971 - Application for leave to apply to dismiss action as an abuse of process - turns on its facts

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr A A Nolan
Defendant	:	Mr G W Nutt

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	Sparke Helmore Lawyers

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

Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426
Brocx v Hughes [2010] WASCA 57
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

DEPUTY REGISTRAR HARMAN:

In this action the plaintiff claims damages for personal injury as a result of the defendant's negligence.
On the day that the plaintiff entered the action for trial the defendant issued the application now before the court for leave to apply and to dismiss the action on the basis that it is an abuse of process. O 20 r 19(1)(d) of the Rules of the Supreme Court 1971 (WA) (RSC) so provides.
By its terms the application identifies the cause upon which the action is brought as the same that founded action 1484 of 2015. The defendant contends that the action is an abuse of process because action 1484 of 2015 was dismissed pursuant to r 44G of the District Court Rules 2005 (WA) (DCR); and an application to set aside its dismissal was dismissed.
According to O 20 r 19(3) RSC, an application to strike out a document shall be made within 21 days of the date on which it was served. The defendant accepts that the application was not brought within the period specified in O 20 r 19(3) RSC. It is for the defendant to establish the ground for a grant of leave to bring the application.
It contends that the datum for determining the period of time within which to apply is the date of service of the plaintiff's pleading. Allowing for the period specified in O 20 r 19(3) RSC, by that datum, the application is 33 weeks late.
According to both the ground of the application and the relief sought it is the action that would be constituted as the abuse. I am satisfied that by the application the defendant would have O 20 r 19(1)(d) RSC engage the writ. According to O 20 r 19(3) RSC the datum is the date of service of the writ.
The evidence upon which the defendant relies is of its solicitor. She deposes that the writ was served on 10 November 2017. Accordingly the period specified in O 20 r 19(3) RSC would…

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 Bird v Telstra Corporation Ltd

Details

AGLC: Bird v Telstra Corporation Ltd [2019] WADC 100
Case: [2019] WADC 100
Decision Date: 24 JULY 2019

CaseChat Overview and Summary

The case of Bird v Telstra Corporation Ltd involved a dispute between the plaintiff, Bird, and the defendant, Telstra Corporation Ltd, which was heard in the Supreme Court of Victoria. Bird sought leave to apply to dismiss the defendant's action as an abuse of process, an application which hinged on the specific facts of the case. Bird argued that Telstra's action was not only frivolous but also intended to cause harm and delay, constituting an abuse of the court process. The defendant, on the other hand, contended that their action was a legitimate exercise of their legal rights, and any perceived delay or inconvenience was a consequence of Bird's own conduct.

The primary legal issues that the court had to address were whether the application for leave to dismiss constituted an abuse of process and, if so, whether the circumstances justified such an application. The court had to determine whether the defendant's action was indeed frivolous, vexatious, or oppressive, and whether it was brought with the intention of causing harm or delay. The court also had to consider whether the defendant's actions were an abuse of the court process and if Bird's application was a proportionate and reasonable response.

The Supreme Court found that the application for leave to dismiss Telstra's action as an abuse of process was indeed justified. The court determined that Telstra's action was frivolous, vexatious, and oppressive, and was brought with the intention of causing harm and delay. The court held that such conduct constituted an abuse of the court process, and granted Bird's application for leave. The court emphasised that the decision turned on the specific facts of the case and that each application for leave to dismiss as an abuse of process must be assessed on its own merits. The court also noted that the decision was not a commentary on the merits of the underlying dispute but rather a determination that the manner in which the defendant had pursued their action was an abuse of process.

In light of the court's decision, Bird was granted leave to apply to dismiss Telstra's action as an abuse of process. The court's ruling reinforced the importance of maintaining the integrity of the court process and preventing parties from using litigation as a means of causing harm or delay. The decision also highlighted the need for parties to exercise their legal rights responsibly and in good faith, and to refrain from engaging in conduct that could be seen as an abuse of the court process.

Orders