Fourmi Pty Ltd v Commissioner for Consumer Protection - [2017] WASCA 69

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
West Australian Newspapers v Fairhead [2013] WASCA 151

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…

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: [2017] WASCA 69
Decision Date: 6 APRIL 2017

CaseChat Overview and Summary

Fourmi Pty Ltd brought an appeal against the Commissioner for Consumer Protection, challenging the dismissal of their action by the Supreme Court of Western Australia. The appellant sought to appeal the decision, which involved an order for costs against the appellant and a direction to pay the respondent's costs of the proceedings in the Magistrates Court. The appeal hinged on whether it had a reasonable prospect of succeeding and the procedural implications of the case being inactive for over 12 months under the Rules of the Supreme Court 1971 (WA). The respondent argued that the appeal should be dismissed due to the inactivity of the case and the failure of the appellant to take any procedural steps for more than a year.

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.

Orders