Clark v Rowell Consulting Services Pty Ltd - [2003] WASC 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CLARK -v- ROWELL CONSULTING SERVICES PTY LTD & ANOR [2003] WASC 89

CORAM: MASTER SANDERSON

HEARD: 14 APRIL 2003

DELIVERED : 15 MAY 2003

FILE NO/S: CIV 2046 of 2002

BETWEEN: RICHARD MELVILLE CLARK
Plaintiff
AND
ROWELL CONSULTING SERVICES PTY LTD (ACN 001 928 758)
First Defendant
WARWICK HAROLD MITFORD ROWELL
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Application out of time - Application to strike out defence - Application to amend defence - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time to apply to strike out statement of claim refused
Leave to amend defence granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Feutrill
First Defendant             :     Mr M C Hotchkin
Second Defendant         :     Mr M C Hotchkin

Solicitors:

Plaintiff:     Beere May & Meyer
First Defendant             :     Hotchkin Hanly
Second Defendant         :     Hotchkin Hanly

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

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
The Wik Peoples v The State of Queensland & Ors (1996) 187 CLR 1

Case(s) also cited:

Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216
Gardiner v Ray [1999] WASC 140
Grundy v Lewis (1995) 62 FCR 567
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
LG Thorne v Thomas Borthwick (1955) SR (NSW) 81
Port Sudan Cott & Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyds Rep 5
Robinson v Adshed (No 2) (1995) 12 WAR 577
Sangora Holdings Pty Ltd v Dunstan, unreported; SCt of WA; Library No 990172; 13 April 1999
Schipp v Cameron, Harrison & Ors [1998] NSWSC 997
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
State of New South Wales v Banabelle Electrical Pty Ltd (2002) 54 NSWLR 503
United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

MASTER SANDERSON: This is the defendants' application to strike out the plaintiff's entire statement of claim or, in the alternative, certain paragraphs thereof. The defendants also seek leave to amend their defence in terms of a minute of proposed amended defence filed 29 November 2002. The plaintiff opposes this application and has applied to strike out the present defence. (Although the chamber summons did not seek leave to amend the defence as an alternative to the strike‑out application, clearly if the whole or substantial part of the statement of claim was struck out with leave to replead, there would be no point in filing any defence until the statement of claim was amended). Although the defendants' chamber summons did not seek an extension of time to bring the strike‑out application, the application was made well out of time and leave was required. It…

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.

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Details

Case: [2003] WASC 89
Decision Date: 15 MAY 2003

CaseChat Overview and Summary

The case before the court involved a dispute between Clark, the plaintiff, and Rowell Consulting Services Pty Ltd, the defendant. The plaintiff initiated legal action seeking compensation for alleged breaches of contract and misrepresentation by the defendant. The court was called upon to address several procedural applications, including an application by the defendant to strike out the plaintiff's statement of claim, an application by the defendant to strike out its own defence, and an application by the defendant to amend its defence.

The primary legal issues the court needed to resolve centred on the procedural aspects of the case. These included whether the defendant's application to strike out the plaintiff's statement of claim was valid despite being out of time, and whether the defendant's application to strike out and amend its own defence was appropriate given the circumstances. The court needed to carefully consider the relevant rules of procedure and the specific facts of the case to determine the admissibility and relevance of each application.

In its decision, the court meticulously examined the procedural timeliness and the merits of each application. The court held that the defendant's application to strike out the plaintiff's statement of claim was indeed out of time and thus dismissed it. Regarding the defendant's application to strike out and amend its defence, the court determined that these applications turned on their own facts and needed to be assessed individually. The court found that the defendant's application to strike out its own defence was not appropriate as it had not demonstrated any clear grounds for doing so. However, the court allowed the application to amend the defence, finding that the amendments were relevant and did not prejudice the plaintiff.

The court's final orders included the dismissal of the defendant's application to strike out the plaintiff's statement of claim, the refusal to strike out the defendant's own defence, and the permission to amend the defendant's defence. The case proceeded with these procedural aspects resolved, allowing the substantive issues to be addressed in subsequent hearings.

Orders