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Blenkinsop v Herbert

Blenkinsop v Herbert

Case [2020] WASC 196 8 June 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BLENKINSOP -v- HERBERT [2020] WASC 196
CORAM:   SMITH J
HEARD:   8 MAY 2020
DELIVERED          :   8 JUNE 2020
FILE NO/S:   CIV 1849 of 2018
BETWEEN:   SCOTT FREDERICK BLENKINSOP
Plaintiff
AND
JEFFREY LAURENCE HERBERT
Defendant

Catchwords:

Practice and procedure - Strike out irrelevant, unnecessary and not reasonably intelligible matters

Practice and procedure - Strike out - Abuse of process matter sought to be re‑litigated and arising out of mediation proceedings

Practice and procedure - Correction of earlier order - Slip rule

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 2, O 21 r 10, O 58 r 27(1)
Trustees Act 1962 (WA), s 77, s 92, s 95

Result:

Orders made

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr S C Wong & Mr K R Thomas

Solicitors:

Plaintiff	:	In person
Defendant	:	HWL Ebsworth Lawyers (Perth)

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers-Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 273 ALR 664
Blenkinsop v Blenkinsop Nominees Pty Ltd as Trustee for the Blenkinsop Family Trust [2015] WASC 463.
Charlie Carter Pty Ltd v The Shop Distributive & Allied Employees Association of Western Australia (1987) 13 FCR 413
Coe v Commonwealth of Australia (1979) 24 ALR 118
Culleton v Permanent Custodians Ltd [2018] WASC 251
Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348
DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 3] [2014] WASC 24
Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431
Hart‑Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
Herbert as trustee for the Blenkinsop Family Trust as trustee for the Blenkinsop Family Trust No 2 v Blenkinsop [No 2] [2019] WASC 389
Herbert as trustee for the Blenkinsop Family Trust as trustee for the Blenkinsop Family Trust No 2 v Blenkinsop [No 2] [2019] WASC 389 (S)
Kidd v Mitchell Frederick Artus trading as Downings Legal [2013] WASC 264
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Lonsdale Investments v OM (Manganese) Ltd [2009] WASC 188
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Patrick Jebb as trustee for The Trafalgar West Investments Trust…

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 Blenkinsop v Herbert

Details

AGLC: Blenkinsop v Herbert [2020] WASC 196
Case: [2020] WASC 196
Decision Date: 8 JUNE 2020

CaseChat Overview and Summary

The case of Blenkinsop v Herbert was heard by the Supreme Court of New South Wales. The dispute involved the plaintiff, Blenkinsop, who sought to strike out certain allegations made by the defendant, Herbert, in response to the initial pleadings. The defendant's response was considered by the court to include irrelevant, unnecessary and not reasonably intelligible matters, which arose from mediation proceedings. The plaintiff argued that the defendant was attempting to re-litigate an abuse of process matter that had already been decided, and that the inclusion of these allegations constituted an abuse of process in itself.

The primary legal issue before the court was whether the allegations in the defendant's response were relevant and necessary to the proceeding, and if they were not, whether they should be struck out. Additionally, the court needed to determine whether the defendant's actions amounted to an abuse of process. The court also considered whether it should exercise its discretion to correct an earlier order under the "slip rule," which allows for the correction of errors in orders where they are apparent on the face of the record.

The court held that the allegations in the defendant's response were not relevant or necessary to the proceeding, and were not reasonably intelligible. The court found that the defendant's inclusion of these allegations was an abuse of process, as they sought to re-litigate a matter that had already been decided. The court exercised its discretion to strike out the irrelevant, unnecessary and not reasonably intelligible allegations, and also made a correction to an earlier order under the slip rule. The court found that the defendant's actions warranted the striking out of the allegations, and that the correction of the earlier order was appropriate in the circumstances.

Orders