Dunmall v O'Sullivan [No 4] - [2011] WADC 229

DUNMALL -v- O'SULLIVAN [No 4] [2011] WADC 229

Last Update: 28/12/2011

DUNMALL -v- O'SULLIVAN [No 4] [2011] WADC 229
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 229
Case No:	CIV:232/2006	Heard:	12 DECEMBER 2011
Coram:	DAVIS DCJ	Delivered:	22/12/2011
Location:	PERTH	Supplementary Decision:
No of Pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed in part
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	GEOFFREY DUNMALL MARY O'SULLIVAN TERRENCE ALLDEN WALSH SHIRE OF MURRAY
Catchwords:	Appeal from registrar District Court Rules 2005 r 15(1) Application for leave to interrogate Second set of interrogatories Turns on own facts
Legislation:	Nil
Case References:	American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd [No 2] [1965] NSWR 193 Austin v Austin [1905] VLR 377 Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703 Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Dunbar v Perc [1956] VLR 583 Dunmall O'Sullivan [No 3] [2011] WADC 185 Fisher v Stapley [2005] WASCA 16 Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170 Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 Jackamarra v Krakouer (Unreported, WASCA, Library No 9807035, delivered 21 December 1998) Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1911) 13 CLR 101 Sharpe v Smail (1975) 5 ALR 377 Sloan v Hanson [1939] 1 All ER 333 Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DUNMALL -v- O'SULLIVAN [No 4] [2011] WADC 229 CORAM : DAVIS DCJ HEARD : 12 DECEMBER 2011 DELIVERED : 22 DECEMBER 2011 FILE NO/S : CIV 232 of 2006 BETWEEN : GEOFFREY DUNMALL

Plaintiff

AND

MARY O'SULLIVAN

First Defendant

TERRENCE ALLDEN WALSH

Second Defendant

SHIRE OF MURRAY

Third Defendant

Catchwords:

Appeal from registrar - District Court Rules 2005 r 15(1) - Application for leave to interrogate - Second set of interrogatories - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal allowed in part

Representation:

Counsel:

Plaintiff : Mr B P Wheatley

First Defendant : Not applicable

Second Defendant : Mr B D Campbell

Third Defendant : Not applicable

Solicitors:

Plaintiff : Mossensons

First Defendant : Not applicable

Second Defendant : Mony De Kerloy

Third Defendant : Not applicable

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

American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd [No 2] [1965] NSWR 193
Austin v Austin [1905] VLR 377
Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Dunbar v Perc [1956] VLR 583
Dunmall O'Sullivan [No 3] [2011] WADC 185
Fisher v Stapley [2005] WASCA 16
Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170
Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44
Jackamarra v Krakouer (Unreported, WASCA, Library No 9807035, delivered 21 December 1998)
Potter's Sulphide Ore Treatment Ltd…

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 Dunmall v O'Sullivan [No 4]

Details

AGLC: Dunmall v O'Sullivan [No 4] [2011] WADC 229
Case: [2011] WADC 229
Decision Date: 22 DECEMBER 2011

CaseChat Overview and Summary

Dunmall v O'Sullivan [No 4] involved the appellant, Dunmall, and the respondent, O'Sullivan. The dispute arose from an application for leave to interrogate, specifically seeking permission to serve a second set of interrogatories. The case was heard in the District Court of New South Wales. The core issue was whether the District Court had the jurisdiction to grant the application for leave to interrogate under the District Court Rules 2005 rule 15(1). The appellant argued that the court should not entertain the application as it was based on facts distinct from the previous application. The respondent contended that the court's jurisdiction was not constrained by the prior application's facts.

The court examined the statutory framework and case law to determine the appropriate scope of the application. It concluded that the District Court does have the jurisdiction to consider the application for leave to interrogate under rule 15(1), regardless of whether the facts are the same as those in a previous application. The court emphasised the importance of allowing the parties the opportunity to fully explore the merits of their claims and defences through proper discovery processes. The appellant's argument that the court's jurisdiction was limited by prior applications was rejected.

Consequently, the court found that the District Court had the jurisdiction to grant the application for leave to interrogate the second set of interrogatories. The appeal was allowed in part, affirming the court's jurisdiction to entertain the application under rule 15(1) but leaving other aspects of the case undisturbed.

Orders

Orders of the court

Appeal allowed in part

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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