BOWEN BUCHBINDER VILENSKY (A FIRM) -v- SMITH [2001] WASCA 108

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 108
Court:	THE FULL COURT (WA)	Published:	04/04/2001
Case No:	FUL:158/2000	Heard:	22 MARCH 2001
Coram:	MURRAY J MILLER J	Delivered:	22/03/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
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Parties:	BOWEN BUCHBINDER VILENSKY (A FIRM) STEPHEN PAUL SMITH
Catchwords:	Practice and procedure Successful application to strike out statement of claim Leave to re-plead Whether leave granted so as to allow the reinstatement out of time of an abandoned cause of action Indorsement of writ referred to claim Whether statement of claim in narrower terms Whether an abandonment of a cause of action Effect on grant of leave to plead claim, if so "Cause of action"
Legislation:	Supreme Court Rules 1971 (WA), O 21 r 5
Case References:	Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Morgan v Banning (1999) 20 WAR 474 Smith v ANL Ltd [2000] HCA 58 Smith v Australian National Line Ltd (1998) 20 WAR 219 Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Weldon v Neal [1887] 19 QBD 394 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 ANZ Banking Group Ltd v Larcos (1987) 13 NSWLR 286 Broome v Cassell & Co [1972] AC 1027 Cartledge v E Jopling & Sons Ltd [1963] AC 758 Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415 Dallas Development Corporation Pty Ltd v Western Australian Land Authority, unreported; FCt SCt of WA; Library No 980245; 7 May 1998 Hall v Meyrick [1957] 2 QB 455 Harries v Ashford [1950] 1 All ER 427 Kreuger v Jansen (1990) 99 FLR 403 National Mutual Life Association of Australasia Ltd v Chris Poulson Insurance Agencies Pty Ltd (No 3) [1997] Tas R 10 Quarmby v May (1999) 7 ACSC 98 Renowden v McMullin 123 CLR 584 Wilson v Metaxas [1989] WAR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BOWEN BUCHBINDER VILENSKY (A FIRM) -v- SMITH [2001] WASCA 108 CORAM : MURRAY J

MILLER J

HEARD : 22 MARCH 2001 DELIVERED : 22 MARCH 2001 PUBLISHED : 4 APRIL 2001 FILE NO/S : FUL 158 of 2000 BETWEEN : BOWEN BUCHBINDER VILENSKY (A FIRM)

Applicant

AND

STEPHEN PAUL SMITH

Respondent

Catchwords:

Practice and procedure - Successful application to strike out statement of claim - Leave to re-plead - Whether leave granted so as to allow the reinstatement out of time of an abandoned cause of action - Indorsement of writ referred to claim - Whether statement of claim in narrower terms - Whether an abandonment of a cause of action - Effect on grant of leave to plead claim, if so - "Cause of action"

Legislation:

Supreme Court Rules 1971 (WA), O 21 r 5

(Page 2)

Result:

Application for leave to appeal dismissed

Representation:

Counsel:

Applicant…

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 Bowen Buchbinder Vilensky (A Firm) v Smith

Details

AGLC: Bowen Buchbinder Vilensky (A Firm) v Smith [2001] WASCA 108
Case: [2001] WASCA 108
Decision Date: 4 APRIL 2001

CaseChat Overview and Summary

The parties involved in this case were Bowen Buchbinder Vilensky, a firm, as the applicant, and Smith as the respondent. The nature of the dispute was an application by the firm to strike out a statement of claim, which was subsequently abandoned. The firm sought leave to re-plead and reinstate the cause of action out of time. The court that heard this case was the Federal Court of Australia.

The primary legal issue the court had to decide was whether the firm's leave to re-plead was granted in such a manner that it allowed the reinstatement of the abandoned cause of action. The court also had to determine whether the indorsement of the writ referred to the claim, and if the statement of claim was in narrower terms, whether it constituted an abandonment of a cause of action. If it did, the court had to consider the effect on the grant of leave to plead the claim.

The court found that the leave granted was for the purpose of allowing the firm to re-plead and reinstate the cause of action. The indorsement of the writ referred to the claim, and the statement of claim was in narrower terms. The court concluded that this did not amount to an abandonment of a cause of action, and therefore, the grant of leave to plead the claim was valid. The firm's application for leave to appeal was dismissed.

The final orders of the court were the dismissal of the firm's application for leave to appeal. This decision highlights the importance of understanding the implications of abandoning a cause of action and the impact it may have on the ability to re-plead and reinstate the cause of action in a legal proceeding.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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