Ellis v The Hoyts Corporation Pty Ltd (No.2)

Ellis, the plaintiff, sought to set aside orders made by the Supreme Court of Western Australia in his absence, which had struck out his statement of claim and dismissed his application for non-appearance. The defendant was The Hoyts Corporation Pty Ltd.

The central legal issue before Lucev J was whether the orders previously made should be set aside. This involved considering the plaintiff's explanation for his non-appearance and the merits of his claim, as well as the principles governing the setting aside of judgments or orders made ex parte or in default.

Lucev J reasoned that the plaintiff had provided a sufficient explanation for his absence, attributing it to a misunderstanding regarding the court date. Crucially, his Honour found that the plaintiff had an arguable case, meaning the statement of claim was not obviously without merit. Applying the principles that courts generally favour a trial on the merits where possible, and that setting aside orders made in a party's absence is permissible upon a proper showing, Lucev J determined that the previous orders should be vacated.

The court ordered that the previous orders striking out the statement of claim and dismissing the application be set aside, provided the plaintiff paid the defendant's costs of the application to set aside the orders, to be taxed if not agreed.