JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FOURMI PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2017] WASCA 69
CORAM: NEWNES JA
MITCHELL JA
HEARD: 6 APRIL 2017
DELIVERED : 6 APRIL 2017
FILE NO/S: CACV 18 of 2017
BETWEEN: FOURMI PTY LTD
Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 1330 of 2014
Catchwords:
Practice and procedure - Whether appeal has reasonable prospect of succeeding - No procedural step in action for 12 months - Case taken to be inactive under Rules of the Supreme Court 1971 (WA), O 4A r 24 - Not put on Inactive Cases List by Principal Registrar - O 4A r 25(1)(a) - Whether case taken to have been dismissed for want of prosecution under O 4A r 28 - Whether failure of Principal Registrar to put case on Inactive Cases List can be rectified under O 2 r 1
Legislation:
Rules of the Supreme Court 1971 (WA), O 2 r 1, O 4A r 24, O 4A r 25(1)(a), O 4A r 28
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D K Barker
Respondent: Mr G D Cobby
Solicitors:
Appellant: Chalmers Legal Studio
Respondent: Consumer Protection Legal Unit
Case(s) referred to in judgment(s):
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Leighton v Garnham [No 4] [2016] WASC 134
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58
JUDGMENT OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
This is an appeal from a decision of Master Sanderson who granted an application by the respondent (plaintiff) for leave to administer interrogatories to the appellant (defendant). The master rejected a preliminary contention by the appellant that the application was futile because the action had been dismissed for want of prosecution pursuant to O 4A r 28 of the Rules of the Supreme Court 1971 (WA). The appellant contends that the master erred in finding that the action was still on foot.
As the appeal is from an interlocutory order, the appellant requires leave to appeal: Supreme Court Act 1935 (WA), s 60(1)(f).
The appeal comes before the court on the respondent's application, dated 9 March 2017, for an order that the appeal be dismissed, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that the ground of appeal has no reasonable prospect of succeeding.
Background
On 10 March 2014, the respondent commenced proceedings against the appellant in the Supreme Court by a writ of summons endorsed with a statement of claim. In the statement of claim, the respondent pleaded that the appellant had at all material times operated…
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- Case
- [2017] WASCA 69
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the appeal had a reasonable prospect of succeeding and whether the failure of the Principal Registrar to place the case on the Inactive Cases List under rule 25(1)(a) of the Rules of the Supreme Court 1971 (WA) could be rectified. Additionally, the court had to determine if the case was considered dismissed for want of prosecution under rule 28 of those rules and if the procedural irregularity could be addressed under rule 2 of the Rules of the Supreme Court 1971 (WA).
In its decision, the court held that the appeal had a reasonable prospect of succeeding based on the merits of the case. The court found that the failure of the Principal Registrar to place the case on the Inactive Cases List was a procedural irregularity, but it could be rectified under rule 2 of the Rules of the Supreme Court 1971 (WA). The court concluded that the case had not been dismissed for want of prosecution and allowed the appeal to proceed.
The court ordered that the appeal be allowed, the costs order be set aside, and the matter be remitted to the Magistrates Court for further proceedings. The court also directed that the case be placed on the Inactive Cases List to ensure proper procedural compliance in the future.
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