Galvin v Maslen - [2025] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GALVIN -v- MASLEN [2025] WADC 2
CORAM:   REGISTRAR NUNN
HEARD:   8 NOVEMBER 2024
DELIVERED          :   31 JANUARY 2025
FILE NO/S:   CIV 2051 of 2021
BETWEEN:   GREG GALVIN
Plaintiff

AND

DUDLEY MASLEN
Second Defendant

Catchwords:

Application for springing order - Removal of solicitor from the record - Compliance with Rules of the Supreme Court 1971 (WA) O 8 r 7 - Discretion to cure irregularity - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 8 r 7

Result:

The application is dismissed

Representation:

Counsel:

Plaintiff	:	Mr I W Priddis
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Graham & Associates Lawyers
Second Defendant	:	Not applicable

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

Cheney v Moore [2020] WASC 227
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106

REGISTRAR NUNN:

Introduction

Greg Galvin is an accountant. He and his firm had some dealings with Gascoyne Water Co-operative Limited and its then Chairman Dudley Maslen. Those dealings did not end amicably.
Mr Galvin alleges that Mr Maslen (and by extension the Co‑operative) defamed him. He brings this action in defamation against both of them (as first and second defendants).
The Co-operative and Mr Galvin managed to resolve their differences and the action against the Co-operative was dismissed. The action against Mr Maslen remains on foot.
Mr Galvin now seeks a springing order against Mr Maslen contending that:
(a)Mr Maslen has repeatedly failed to comply with orders for discovery;
(b)since Mr Maslen's solicitor's application to get off the record, Mr Maslen has been served orders further requiring discovery (and the present application for a springing order for judgment against him if he does not provide the discovery ordered) at his last known address and email address;
(c)Mr Maslen has not complied with the orders or responded to the application despite being granted opportunities to do so; and
(d)as a consequence of this it is appropriate that the springing order sought be made in his favour.
This raises for determination the following issues:
(a)has Mr Maslen been served with Mr Galvin's application;
(b)has Mr Maslen failed to comply with orders made; and
(c)is a springing order appropriate in this instance?

Background

Mr Maslen has changed representatives several times. His most recent representatives were granted leave to get off the record. Since then, it appears that Mr Maslen has been unrepresented. Both Mr Galvin and the court have proceeded on this basis.
Although Mr Maslen has written to the court on one occasion and been granted leave to appear at hearings before the court via telephone (given he resides in Carnarvon), Mr Maslen has not participated in any proceedings before the court since his representatives were granted leave to get off the record nor has he facilitated this by providing the court with any telephone number on…

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.

Continue reading Galvin v Maslen

Details

AGLC: Galvin v Maslen [2025] WADC 2
Case: [2025] WADC 2
Decision Date: 31 JANUARY 2025

CaseChat Overview and Summary

In the case of Galvin v Maslen, the applicant, Mr Galvin, sought a springing order to remove the solicitor from the record in a dispute concerning the removal of Mr Maslen's solicitor. The court was required to determine whether the application for the springing order was appropriate given the circumstances. The central legal issues involved the interpretation of the Rules of the Supreme Court 1971 (WA) O 8 r 7 and the discretion of the court to cure irregularities under RSC O 2 r 1. The court also considered the necessity of exercising caution when issuing springing orders, as highlighted in Firmware Technologies Inc v Asia Platinum Group Ltd.

The court examined the obligation of Mr Maslen's solicitors, Addisons, to properly remove themselves from the record. It was noted that the obligation to perfect the application to no longer stand as Mr Maslen's solicitor lay with Addisons. Despite this, the court decided not to exercise its discretion to cure the irregularity, finding that the uncertainty regarding Mr Maslen's awareness of the application warranted caution. The court concluded that issuing a springing order would be inappropriate in light of the uncertainty and the irregularity that had not been cured. Consequently, the court dismissed Mr Galvin's application for the springing order.

The court's decision highlighted the importance of verifying that all necessary steps have been taken to perfect an application and the potential consequences of making assumptions. The court noted that while Mr Galvin was not at fault for failing to check that Addisons' application had been perfected, the court itself had also proceeded on this assumption. The court ultimately declined to exercise its discretion to grant the springing order, dismissing Mr Galvin's application. Whether Mr Galvin can now press Addisons to perfect its application remains a matter for Mr Galvin, as Addisons remain the solicitors of record.

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

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Ratio Decidendi

Legal Principle Established

I am also conscious that the obligation to properly remove themselves from the record lies with Mr Maslen's solicitors. Until such time as that occurs the solicitor has been and remains bound to accept service and engage with the court. As noted, this is made clear by the plain words of RSC O 8 r 7. See also Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106, 179. As the obligation to perfect its application to no longer stand as Mr Maslen's solicitor resides with Addisons (and not Mr Maslen) ultimately, I am inclined to the view that this is not a situation in which the court should act to cure the irregularity and exercise its discretion under RSC O 2 r 1. This then leads to consideration of the question of whether the springing order sought ought be issued? The answer to this must be 'no'. Mr Galvin relies on Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 (Firmware) as authority for the proposition that the springing order it seeks is capable of clear comprehension and compliance and so avoids much of the uncertainty that plagued the orders made in that case. I accept a springing order in the terms sought is clearly expressed. However, Firmware also stands for the proposition springing orders need to be exercised with 'considerable caution and circumspection' (see Firmware [5]). Although the circumstances of this case are not an example of the kind canvassed by the court in Firmware as to when springing orders may not be appropriate the uncertainty surrounding Mr Maslen's awareness of the present application is sufficient in my mind to resonate with the court's admonition for the exercise of 'considerable caution and circumspection'. This same admonition serves to cement my conclusion as to why any discretion under RSC O 2 r 1 ought not be exercised in this situation. In the present circumstances of uncertainty as to whether Mr Maslen was appropriately served notice of the application a springing order would, in my view, be inappropriate and in any event, is based on an irregularity that has not been cured. For these reasons I decline to make the order sought. The problem that frustrates Mr Galvin's application is neither of his nor Mr Maslen's making. If Mr Galvin is at fault it is only in failing to check that Addisons' application had been perfected and that Mr Maslen was in fact unrepresented. However, Mr Galvin is no orphan in that regard. The court too has proceeded on the assumption that Addisons' application had been perfected. This highlights the danger of assumptions and the truth of the old adage of what 'assume' can do to you and me. In declining to exercise my discretion to grant the application for a springing order it follows that Mr Galvin's application by chamber summons for such an order is dismissed. Whether Mr Galvin can now press Addisons to perfect its application under RSC O 8 r 7 is a matter for Mr Galvin. As Addisons remain the solicitors of record it is proper that a copy of this decision be provided to them and it may be that they attend to this themselves.