Culleton v Kershaw [No 2] - [2018] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CULLETON -v- KERSHAW [No 2] [2018] WASC 238
CORAM:   KENNETH MARTIN J
HEARD:   26 JUNE 2018
DELIVERED          :   10 AUGUST 2018
FILE NO/S:   CIV 1465 of 2016
BETWEEN:   RODNEY NORMAN CULLETON
Plaintiff
AND
BRADLEY KERSHAW
First Defendant
CHRIS PETIT
Second First Defendant
TORI KIRK
Second Defendant
REBECCA FORD
Third Defendant
COURTNEY KETT
Fourth Defendant
MARK REAGAN
Fifth Defendant
MAUREEN ADAMS
Sixth Defendant
GEMMA HADRICK
Seventh Defendant
THERESE GILMORE
Eighth Defendant
YASMIN DUNBAR
Ninth Defendant
SHELLY ORCHARD
Tenth Defendant
RORY McDOUGALL
Eleventh Defendant
JAMES MEDLEN
Twelfth Defendant
EMMA TAYLOR
Thirteenth Defendant
SHERYL WORRELL
Fourteenth Defendant
CARLEY THOMPSON
Fifteenth Defendant
PETER McGIVERN
Sixteenth Defendant
LYNN FRANKLIN
Seventeenth Defendant

Catchwords:

Practice and procedure - Inactive cases list - Running of six month time period allowed to remove from list - Action deemed to be dismissed for want of prosecution - Plaintiff's defamation action not removed from inactive cases list within six month period - Application by plaintiff after expiry of six month period for extension of time to remove action from inactive cases list - Application made out of time - Action dismissed by effect of rules of court

Legislation:

Bankruptcy Act 1966 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	No appearance
Second First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Ms S M Radovanovic
Fourth Defendant	:	No appearance
Fifth Defendant	:	Ms S M Radovanovic
Sixth Defendant	:	No appearance
Seventh Defendant	:	Ms S M Radovanovic
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	Ms S M Radovanovic
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Seventeenth Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendant	:	No appearance
Second First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Mony de Kerloy Barristers and Solicitors
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mony de Kerloy Barristers and Solicitors
Sixth Defendant	:	No appearance
Seventh Defendant	:	Mony de Kerloy Barristers and Solicitors
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	Mony de Kerloy Barristers and Solicitors
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Seventeenth Defendant	:	No appearance

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

Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632
Culleton v Kershaw [2016] WASC 334
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552
Hermes Capital Australia Ltd v Melia [2017] WASC 185
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Nyoni v Pharmacy Board of Australia [No 4] [2017] FCA 911
Re Culleton…

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 Culleton v Kershaw [No 2]

Details

AGLC: Culleton v Kershaw [No 2] [2018] WASC 238
Case: [2018] WASC 238
Decision Date: 10 AUGUST 2018

CaseChat Overview and Summary

The case of Culleton v Kershaw involved a defamation action that was not removed from the inactive cases list within the stipulated six-month period. The plaintiff sought an extension of time to remove the action from the list, arguing that the delay was due to circumstances beyond their control. The Federal Court was tasked with determining whether the plaintiff's application for an extension was valid, given that it was made well after the six-month period had expired.

The central legal issue was whether the court had the discretion to extend the six-month period within which an action must be removed from the inactive cases list. The court had to consider the rules of court, which dictated that actions not removed from the list within six months were to be deemed dismissed for want of prosecution. The plaintiff argued that exceptional circumstances warranted an extension, but the court needed to balance this against the need for the court's lists to be current and active.

In examining the rules and the circumstances, the court held that the six-month period was mandatory and not subject to extension under the circumstances presented. The plaintiff's application to extend time was made out of time, and therefore, the court did not have the discretion to grant the extension. Consequently, the action was dismissed for want of prosecution, in accordance with the rules of court. The court's decision emphasised the importance of adhering to procedural requirements and the necessity for courts to maintain efficient case management.

Orders