JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROCX -v- HUGHES [2010] WASCA 57
CORAM: PULLIN JA
BUSS JA
NEWNES JA
HEARD: 15 OCTOBER 2009
DELIVERED : 31 MARCH 2010
FILE NO/S: CACV 41 of 2009
BETWEEN: MARGARET BROCX
Appellant
AND
RAYMOND WILFRED HUGHES
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :BROCX -v- HUGHES [2009] WASC 60
File No :CIV 2490 of 2008
Catchwords:
Practice and procedure - Action by plaintiff dismissed for non-compliance with 'springing order' - Subsequent action brought by plaintiff to enforce same claim - Whether second action an abuse of process - Relevant principles
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr G A Rabe
Respondent: Mr C S Gough
Solicitors:
Appellant: Stables Scott
Respondent: Minter Ellison
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77
Hughes v Gales (1995) 14 WAR 434
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
Janov v Morris [1981] 3 All ER 780
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Re Jokai Tea Holdings Ltd [1993] 1 All ER 630
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Securum Finance Ltd v Ashton [2001] Ch 291
Smith v Bank of Western Australia Ltd [2010] WASCA 15
Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491
PULLIN JA: Newnes JA has set out the history of the litigation between the parties which saves me the trouble of doing so. The appellant's claim relates to a promise allegedly made by Mr Hughes in 1993. Mr Hughes has since passed away. If the matter was to go to trial, the appellant has some witnesses to call and those witnesses are now aged 68, 72, 80 and 84, and the 84 year old is not in good health. It would have been sensible for the respondent to have disclosed what the subject matter of the evidence was. I nevertheless, accept that because the solicitor referred to them as witnesses, in an affidavit, they must be witnesses to relevant…
Continue reading Brocx v Hughes
Sign in free to access the full text
- AGLC
- Brocx v Hughes [2010] WASCA 57
- Case
- [2010] WASCA 57
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the plaintiff's conduct in bringing the second action was an abuse of process, given that the first action had been dismissed for non-compliance with a springing order. The court considered the relevant principles and authorities on the issue of abuse of process, including the requirement for a satisfactory explanation from the party in default to avoid an inference of contumacious conduct.
The court found that the plaintiff's conduct in the first action was contumacious in the absence of a credible and satisfactory explanation for the default. The court noted that the plaintiff's conduct had been marked by continual delay and inaction, and that there had been no substantive steps taken to prosecute the action for a significant period of time. The court also noted that the plaintiff's solicitors had themselves removed from the record due to non-payment of costs and fees. The court held that the plaintiff's conduct in bringing the second action was an abuse of process and dismissed the action with costs.
The court ordered that the second action brought by the plaintiff be dismissed with costs, which were to be paid by the plaintiff to the defendant. The court held that the dismissal of the first action for non-compliance with a springing order, in the absence of a satisfactory explanation, indicated contumacious conduct by the plaintiff. The court further held that the bringing of a second action to enforce the same claim was an abuse of process and was properly dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party's conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred to suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. (I think that for all practical purposes 'contumelious' and 'contumacious' have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority.) As Heydon JA (as his Honour then was) pointed out in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274:A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not [sic] intentional or contumelious. But the absence of any explanation permits that inference to be drawn [54]. In this case it was argued on behalf of the appellant that it was for the respondent to show that the appellant's conduct in the first action was contumacious. I accept that is the case but the particular circumstances which led to default occurring will generally be a matter peculiarly within the knowledge of the defaulting party and their solicitors. It is so in this case. In the absence of a credible and satisfactory explanation by the appellant as to how the default came about, the court is entitled to infer that the conduct concerned was contumacious. It was submitted that in this case the fault lay not with the appellant but with her solicitor. The blamelessness of a party personally is certainly a relevant factor, although it is not necessarily a complete answer. In this case, however, I consider there is insufficient evidence to enable a conclusion to be drawn as to where the fault lay. It is significant that the springing order which led to the dismissal of the first action was made against a background of continual delay and inaction in the prosecution of the appellant's case. Those delays can be said to have started by no later than March 2004 when the respondent's request for particulars of the statement of claim went unanswered for some six months. Shortly after the particulars were delivered, the appellant's solicitors had themselves removed from the record on the ground that the appellant had failed to pay their costs and counsel's fees. Mr Marks came on the record for the appellant in January 2005. From September 2004, when the particulars were provided, until the action was dismissed in February 2007, no substantive steps were taken to prosecute the action. The apparently sporadic attempts at settlement appear to have been exhausted by early February 2006. Still nothing happened to move the action along. And even following Mr Mark's advice to the registrar in March 2006 that an application to strike out the defence would be brought 'as quickly as possible', no substantive steps were taken. It was also the case that frequently correspondence from the court, and from the respondent's solicitors, was answered, if at all, belatedly and only after some prompting.