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Cheney v Moore

Cheney v Moore

Case [2020] WASC 227 29 May 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CHENEY -v- MOORE [2020] WASC 227
CORAM:   LE MIERE J
HEARD:   29 MAY 2020
DELIVERED          :   29 MAY 2020
FILE NO/S:   CIV 3197 of 2016
BETWEEN:   MICHAEL JOHN CHENEY
Plaintiff

AND

BRIAN RICHARD MARK MOORE
Defendant

Catchwords:

Practice and procedure - Default judgment - Order 9 r 1(4) - Sealed copy of the writ not indorsed with the particulars of service within three days of service - Irregularity within the meaning of O 2 r 1 - Discretionary power to rectify irregularities conferred by O 2 r 1(2) - Whether the irregularity can be rectified without injustice - No prejudice to the defendant

Practice and procedure - Notice of intention to proceed - Order 3 r 7 - Failure to give notice of intention to proceed where a year or more has elapsed since the last proceeding in an action - Irregularity within the meaning of O 2 r 1 - Dispensing of the giving of notice cannot be done without injustice - Plaintiff failed to serve statement of claim on defendant

Appeals - Appeal from the decision of a registrar - Not demonstrated that the purported error affected the result - Order 60A r 6 - De novo appeal - Powers of the court on appeal are exercisable not only where there has been some legal, factual or discretionary error

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

The appeal is allowed in part

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Ryan
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Bostock & Ryan
Defendant	:	No appearance

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

Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257

LE MIERE J:

Summary

These are my edited reasons for judgment delivered orally on 29 May 2020. I ordered that the indorsement of service particulars indorsed on the writ of summons on 9 January 2019 stand as an indorsement of the particulars of service from and including 31 October 2017, and that the plaintiff's appeal be otherwise dismissed.

The appeal

The plaintiff appeals from a decision of a registrar on 20 February 2020 by which the registrar declined to make the orders set out in the plaintiff's motion of 13 December 2019 and dismissed the motion.

Extension of time to appeal

The appeal notice was filed a few days out of time. The plaintiff has explained the delay. There is no prejudice to the defendant. The time to bring the appeal will be extended to the date on which the notice of appeal was filed, 6 March 2020.

The motion

By his motion of 13 December 2019 the plaintiff sought orders:
1.The date for indorsement of service of the writ be extended to 9 January 2019.
2.The plaintiff be at liberty to proceed with his application for entry of judgment…

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 Cheney v Moore

Details

AGLC: Cheney v Moore [2020] WASC 227
Case: [2020] WASC 227
Decision Date: 29 MAY 2020

CaseChat Overview and Summary

The case of Cheney v Moore involved a dispute in which the plaintiff sought a default judgment against the defendant. The proceedings took place in the Federal Circuit Court of Australia. The key issue before the court was whether the procedural irregularities that had occurred justified setting aside the default judgment and allowing the defendant to defend the action. The plaintiff had not complied with the procedural requirements of the court rules, including failing to indorse the writ with the particulars of service within the specified timeframe and neglecting to provide the defendant with a notice of intention to proceed with the application for default judgment.

The court considered the discretion available under Order 2 Rule 1 of the Federal Circuit Court of Australia Rules to rectify procedural irregularities. It examined whether the irregularities could be rectified without causing injustice to either party. The court noted that the plaintiff's failure to indorse the writ with the particulars of service within three days of service constituted an irregularity. However, it found that no prejudice had been suffered by the defendant, and thus the irregularity could be rectified without causing any injustice. Consequently, the court exercised its discretion to set aside the default judgment and allowed the defendant to defend the action. The appeal by the plaintiff against the registrar's decision was dismissed as it was not demonstrated that the alleged error affected the outcome of the case.

Orders