First Trade Consulting Pty Ltd v GRD Kirfield Ltd - [2005] WASCA 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FIRST TRADE CONSULTING PTY LTD -v- GRD KIRFIELD LTD [2005] WASCA 158

CORAM: WHEELER JA
MILLER AJA

HEARD: 21 JULY 2005

DELIVERED : 21 JULY 2005

PUBLISHED : 19 AUGUST 2005

FILE NO/S: FUL 104 of 2004

BETWEEN: FIRST TRADE CONSULTING PTY LTD (ACN 009 372 169)
Applicant (Respondent)
AND
GRD KIRFIELD LTD (ACN 069 557 053)
Respondent (Appellant)

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER ODES QC
Citation  :GRD KIRFIELD LTD -v- FIRST TRADE CONSULTING PTY LTD [2004] WASC 158

Catchwords:

Practice and procedure - Want of prosecution - Relevance of settlement negotiations - Provision of draft appeal book index - Warning letters prior to application to strike out for want of prosecution

Legislation:

Nil

Result:

Motion refused

Category: A

Representation:

Counsel:

Applicant (Respondent) : Ms P E Cahill
Respondent (Appellant) : Mr M J McCusker QC

Solicitors:

Applicant (Respondent) : Mony de Kerloy
Respondent (Appellant) : Jackson McDonald

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

Jackamarra v Krakouer (1998) 195 CLR 516
Murcia Holdings Pty Ltd v City of Nedlands [2000] WASCA 275

Case(s) also cited:

Alginates (Australia) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VR 570

JUDGMENT OF THE COURT: At the hearing of this motion for dismissal of appeal for want of prosecution, we refused the motion. We indicated that we would deliver reasons and also reserved the question of costs. These are our reasons for refusing the motion.
A notice of appeal was filed by the appellant on 3 August 2004; but nothing was done thereafter until 28 October 2004 when the Associate to Registrar Eldred directed the appellant that a draft appeal book index was to be filed by 12 November 2004 and that the parties should attend on 22 November 2004 to settle the draft appeal book index. These directions were complied with, but it will be observed that nearly three months had expired before the Associate to Registrar Eldred took the initiative of directing the filing of the appeal book index.
We were advised at the hearing that it is not uncommon for solicitors to refrain from filing a draft index until directed to do so. We are unable to understand why this should be so; it is up to the appellant to progress an appeal, and it is wholly unacceptable for a party to do nothing until prompted by the Registry.
At the appointment on 22 November 2004, directions were given for the extraction of certain orders which the solicitors for the respondent undertook to do. It took over three months for the respondent's solicitors to complete that task and serve copies of the extracted orders upon the solicitors for the appellant.
There were substantial delays in settling the appeal book index. However, by 13 December 2004, an amended draft appeal book index was filed and served by the solicitors for the appellant.
Between January and…

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: [2005] WASCA 158
Decision Date: 19 AUGUST 2005

CaseChat Overview and Summary

In the case of First Trade Consulting Pty Ltd v GRD Kirfield Ltd, the appellant sought dismissal of the respondent's appeal due to the appellant's perceived lack of prosecution. The appellant argued that the respondent's delay in progressing the appeal warranted its dismissal. The matter was heard in the Supreme Court of Queensland.

The court was required to determine whether the respondent's delays in progressing the appeal were sufficient grounds for dismissal under the rules of court. The central issue was whether the appellant had acted promptly in pursuing the motion to dismiss the appeal and if the respondent's settlement negotiations during the period of delay were relevant to the decision. Additionally, the court had to consider whether the respondent's solicitors' delay in filing a draft appeal book index was an acceptable reason for dismissal.

The court found that the appellant's delay in filing the motion to dismiss the appeal and in serving it on the respondent's solicitors contributed to the overall delay in the proceedings. The court also considered that the period of delay coincided with settlement negotiations between the parties, which were a significant factor in the delay. The court found that the appellant's solicitors' delay in filing a draft appeal book index was not an acceptable reason for dismissal, as it was not in line with the appellant's responsibility to progress the appeal. The court ultimately decided that the respondent's delay was not egregious enough to warrant dismissal, and the appeal would not be dismissed for want of prosecution.

The court reserved the question of costs and ordered that the costs of the motion be paid by the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: At the hearing of this motion for dismissal of appeal for want of prosecution, we refused the motion. We indicated that we would deliver reasons and also reserved the question of costs. These are our reasons for refusing the motion. A notice of appeal was filed by the appellant on 3 August 2004; but nothing was done thereafter until 28 October 2004 when the Associate to Registrar Eldred directed the appellant that a draft appeal book index was to be filed by 12 November 2004 and that the parties should attend on 22 November 2004 to settle the draft appeal book index. These directions were complied with, but it will be observed that nearly three months had expired before the Associate to Registrar Eldred took the initiative of directing the filing of the appeal book index. We were advised at the hearing that it is not uncommon for solicitors to refrain from filing a draft index until directed to do so. We are unable to understand why this should be so; it is up to the appellant to progress an appeal, and it is wholly unacceptable for a party to do nothing until prompted by the Registry. At the appointment on 22 November 2004, directions were given for the extraction of certain orders which the solicitors for the respondent undertook to do. It took over three months for the respondent's solicitors to complete that task and serve copies of the extracted orders upon the solicitors for the appellant. There were substantial delays in settling the appeal book index. However, by 13 December 2004, an amended draft appeal book index was filed and served by the solicitors for the appellant. Between January and late April 2005, there were attempts to settle the matters in dispute, and late in April 2005 there was an action in the District Court in which the same parties litigated a related matter which arose out of the factual background of the proceedings under appeal. It was not until approximately 9 May 2005 that it became clear to both parties that settlement of the appeal was unlikely. Meanwhile, on 6 May 2005, the motion to dismiss the appeal for want of prosecution was filed. For some reason, it was not served upon the solicitors for the respondent until 24 June 2005. There had been no prior warning of the fact that steps would be taken to dismiss the appeal for want of prosecution. During the month of June 2005, steps were taken to finalise the appeal book index and the Registrar finally settled that index on 30 June 2005. The matter was then entered for hearing, although without an application for extension of time within which to enter it for hearing, so the entry is invalid. It is important to appreciate that the lengthy delay in the prosecution of this appeal by the appellant was against the background of settlement negotiations between the months of January and May 2005, with relatively prompt steps being taken thereafter to have the appeal book index settled. Unfortunately, the solicitors for the appellant do not seem to have appreciated that an application for an extension of time within which to enter the appeal for hearing would have been appropriate.

Ratio Decidendi

Legal Principle Established

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