COSGROVE -v- CULLOTON [No 2] [2015] WADC 63

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 63
Case No:	CIV:777/2012	Heard:	9 FEBRUARY, 4, 11 & 27 MARCH & 29 MAY 2015
Coram:	GOETZE DCJ	Delivered:	3/06/15
Location:	PERTH
No of pages:	28	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	GEOFFREY GRANT COSGROVE JEFFREY MICHAEL CULLOTON
Catchwords:	Application to set aside judgment after trial in default of appearance by defendant Misconduct of defendant Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA) O 34 r 3
Case References:	Broadway Pty Ltd v Lewis [2012] WASC 373 Johnson & Co Ltd v Clifford (1905) 7 WALR 240 Jones v Dunkel (1959) 101 CLR 298 Policy Nominees v McDougall (Unreported, WASC, Library No 8768, 12 March 1991) Singh v Singh [2006] WASC 182 Tobin v Dodd [2004] WASCA 288 Tomasevic v Travaglini [2007] VSC 337 Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : COSGROVE -v- CULLOTON [No 2] [2015] WADC 63 CORAM : GOETZE DCJ HEARD : 9 FEBRUARY, 4, 11 & 27 MARCH & 29 MAY 2015 DELIVERED : 3 JUNE 2015 FILE NO/S : CIV 777 of 2012 BETWEEN : GEOFFREY GRANT COSGROVE

Plaintiff

AND

JEFFREY MICHAEL CULLOTON

Defendant

Catchwords:

Application to set aside judgment after trial in default of appearance by defendant - Misconduct of defendant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 34 r 3

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr S Vandongen SC

Defendant : Mr N D C Dillon with Mr M Goldblatt

Mr J Hammond : Mr A J Power

Solicitors:

Plaintiff : Bradley Bayly Legal

Defendant : Rowe Bristol Lawyers

Mr J Hammond : Hammond Legal

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

Broadway Pty Ltd v Lewis [2012] WASC 373
Johnson & Co Ltd v Clifford (1905) 7 WALR 240
Jones v Dunkel (1959) 101 CLR 298
Policy Nominees v McDougall (Unreported, WASC, Library No 8768, 12 March 1991)
Singh v Singh [2006] WASC 182
Tobin v Dodd [2004] WASCA 288
Tomasevic v Travaglini [2007] VSC 337
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239

GOETZE DCJ

Introduction

1 The plaintiff, Geoffrey Grant Cosgrove, sued the defendant, Jeffrey Michael Culloton, for damages for personal injuries arising from an alleged assault and battery on 12 April 2009 at Three Springs.

2 The action was listed for trial over five days commencing on 1 September 2014.

3 Mr Culloton did not appear at the trial which proceeded in his absence. On 23 October 2014, judgment was awarded in favour of Mr Cosgrove in the sum of $107,432.

4 Mr Culloton now seeks to set aside the judgment pursuant to O 34 r 3 of the Rules of the Supreme Court 1971 (WA). However, the application was not made within time and therefore, an extension of time…

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 Cosgrove v Culloton [No 2]

Details

AGLC: Cosgrove v Culloton [No 2] [2015] WADC 63
Case: [2015] WADC 63
Decision Date: 3 JUNE 2015

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Cosgrove sought to set aside a judgment against Culloton, who had failed to appear at trial. The nature of the dispute involved claims of misconduct by the defendant, which were alleged to have contributed to his non-appearance and the subsequent default judgment. The court was tasked with determining whether the application to set aside the judgment should be granted, considering the defendant's conduct and its impact on the proceedings. The key legal issue was whether the defendant's misconduct warranted the setting aside of the default judgment. The court examined the circumstances surrounding the defendant's failure to appear and the potential consequences of granting or refusing the application. In its reasoning, the court found that the defendant's conduct did not meet the threshold required to set aside the judgment. The court held that the defendant's actions did not sufficiently justify disturbing the default judgment, and therefore, the application was dismissed. The court emphasised that each case must be assessed on its own facts, and in this instance, the misconduct did not warrant relief from the judgment. Consequently, the court refused to set aside the default judgment, and the application was dismissed.

Orders

Orders of the court

Application 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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