Fuller v Branton Pty Ltd - [2000] WADC 250

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FULLER -v- BRANTON PTY LTD [2000] WADC 250

CORAM: COMMISSIONER GREAVES

HEARD: 11, 18 AUGUST, 11 SEPTEMBER 2000

DELIVERED : 20 OCTOBER 2000

FILE NO/S: CIV 1489 of 1995

BETWEEN: RONALD NORMAN FULLER
Plaintiff
AND
BRANTON PTY LTD (009 180 312)
Defendant

Catchwords:

Practice - Dismissed for want of prosecution - Inordinate and inexcusable delay by plaintiff's solicitors admitted - Evidence not sufficient to establish substantial prejudice to defendant - Application dismissed.

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr M Bennett, Mr D B Shaw
Defendant: Mr G Donaldson, Mr C Touyz

Solicitors:

Plaintiff: Bennett & Co
Defendant: Hammond King Touyz

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

Birkett v James (1978) AC 297
Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998
Spitfire Nominees Pty Ltd v Ducco (1998) 1 VR 242

Case(s) also cited:

Hamersley Iron Pty Ltd v MEWU, unreported; SCt of WA; Library No 970814; 24 April 1997
Hughes v Gales (1985) 14 WAR 434
Velcrete Pty Ltd v Melsom [2000] WASCA 109

COMMISSIONER GREAVES: The defendant seeks an order that the plaintiff's action against it be dismissed for want of prosecution. As the learned authors of the red book point out, it is desirable that reasons for judgment on an application to dismiss an action for want of prosecution should refer in an orderly and unmistakable form to the legal principles involved and recapitulate the steps in the legal process which have occurred: Spitfire Nominees Pty Ltd v Ducco (1998) 1 VR 242 at 247, 249.
It is, I think, in this case important to acknowledge that the plaintiff has conceded inordinate and inexcusable delay on the part of his solicitors. I was of course referred immediately to the judgment of Lord Diplock in Birkett v James (1978) AC 297 at 317. At p 318 his Lordship said:
"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or (2)(a) that there has been inordinate and inexcusable delay on the part of a plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
At p 323, Lord Diplock continued:
"To justify a dismissal of an action for want of prosecution some prejudice to the defendant additional to that inevitably flowing from the plaintiff's tardiness in issuing his writ must be shown to have resulted from his subsequent delay (beyond the period allowed by rules of…

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: [2000] WADC 250
Decision Date: 20 OCTOBER 2000

CaseChat Overview and Summary

In the case of Fuller v Branton Pty Ltd, the plaintiff, Fuller, sought to recover damages from Branton, an Australian corporation. The dispute centred around the dismissal of Fuller's claim for want of prosecution. The admission by Fuller's solicitors of inordinate and inexcusable delay in proceeding with the case was a significant factor in the proceedings. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue for the court was whether the plaintiff's delay in prosecuting the claim was justified and whether the defendant had suffered substantial prejudice as a result. The court needed to weigh the admitted delay against the evidence provided by the parties to determine if the dismissal of the claim was warranted.

The court found that while the delay was inordinate and inexcusable, the evidence did not sufficiently establish that the defendant had suffered substantial prejudice. The court acknowledged the plaintiff's solicitors' admissions but concluded that the delay alone was not enough to warrant the dismissal of the claim. Consequently, the court dismissed the application to dismiss the proceedings.

The final order was that the application to dismiss the proceedings was dismissed, allowing Fuller to continue with the prosecution of the claim.

Orders