Legal Research
Cases
Civmec Construction & Engineering Pty Ltd v Mann [No 2]

Civmec Construction & Engineering Pty Ltd v Mann [No 2]

Case [2023] WASC 99 29 March 2023

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CIVMEC CONSTRUCTION & ENGINEERING PTY LTD -v- MANN [No 2] [2023] WASC 99
CORAM:   TOTTLE J
HEARD:   8 MARCH 2023 AND FURTHER SUBMISSIONS ON 23 MARCH 2023
DELIVERED          :   29 MARCH 2023
FILE NO/S:   CIV 2777 of 2018
BETWEEN:   CIVMEC CONSTRUCTION & ENGINEERING PTY LTD
Plaintiff
AND
LEANNE THERESE MANN
Defendant

Catchwords:

Practice and procedure - Unrepresented defendants - Consent orders - Whether O 42 r 8 of the Rules of the Supreme Court 1971 (WA) required an unrepresented defendant to be present physically to provide consent - Physical presence in the courtroom not required

Practice and procedure - Positive case flow management principles - Ambit of power conferred by O 4A r 2 of the Rules of the Supreme Court 1971 (WA) to make case management directions - Power extends to making case management direction permitting unrepresented defendant to attend hearing convened for purposes of O 42 r 8 of the Rules of the Supreme Court 1971 (WA) by audio link

Contract - Incapacity to contract - Mental disorder - Whether existence of mental impairment sufficient to render party incapable of consenting to final orders - Incapacity not established - Turns on own facts

Practice and procedure - Application to set aside consent orders on grounds of mental disorder - Application should be made by commencing fresh proceedings

Practice and procedure - Suppression orders - Where reasons for granting interlocutory injunctive relief was suppressed - Whether the suppression order should be set aside - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 121
Interpretation Act 1984 (WA), s 8
Rules of the Supreme Court 1971 (WA), O1 r 4B, O 4A r 2, O 4A r 4, O 42 r 7, O 42 r 8

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr E Fearis
Defendant	:	In person

Solicitors:

Plaintiff	:	Minter Ellison
Defendant	:	In person

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

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115
Copping v ANZ McCaughan Ltd (1995) 63 SASR 523
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235
Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435
Klein v Minister for Education [2007] HCA 2; (2007) 232 ALR 306
Lewandowski v Lovell [2006] WASCA 54
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Swancross Corporation Pty Ltd v Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259
The Council of the Shire of Lake Macquarie v Aberdare County Council [1970] HCA 32; (1970)

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 Civmec Construction & Engineering Pty Ltd v Mann [No 2]

Details

AGLC: Civmec Construction & Engineering Pty Ltd v Mann [No 2] [2023] WASC 99
Case: [2023] WASC 99
Decision Date

CaseChat Overview and Summary

Civmec Construction & Engineering Pty Ltd v Mann [No 2] is a case where the defendant, Leann Mann, sought to set aside final injunctive orders made by consent between herself and the plaintiff, Civmec Construction & Engineering Pty Ltd. The defendant argued that the orders should be set aside on the grounds that she was not physically present in the courtroom when giving her consent and that she lacked the mental capacity to consent to the orders. The case was heard by Tottle J in the Supreme Court of Western Australia in Chambers. The court held that the orders should not be set aside and dismissed the defendant's application. The court found that the term 'in person' in the relevant rule did not require physical presence and that any challenge to the consent orders should be made in fresh proceedings. The court also found that the defendant's evidence did not establish that she lacked the requisite capacity to consent to the orders or that such a lack of capacity was known to the plaintiff or its lawyers. Finally, the court held that the suppression order in respect of the reasons for granting interlocutory injunctive relief should not be vacated as the justification for the suppression order not only remained but was reinforced by the granting of the final injunctive relief.

Orders