Geraty v Kneale - [2018] WADC 45

[2018] WADC 45

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

:	GERATY -v- KNEALE [2018] WADC 45

CORAM

: JUDGE VERNON

HEARD

: 24 JANUARY 2018

DELIVERED

: 24 JANUARY 2018

PUBLISHED

: 6 APRIL 2018

FILE NO/S

:	APP BUN 2 of 2017

BETWEEN

: MICHAEL ANTHONY GERATY

Appellant
AND
RYAN MARK KNEALE
Respondent

ON APPEAL FROM:

Jurisdiction

MAGISTRATES COURT OF WESTERN
AUSTRALIA

Coram

: MAGISTRATE MAHON

File Number

:	BUN GCLM 849 OF 2014

[2018] WADC 45

Catchwords:

Appeal from Magistrates Court - Application to remove a case from the inactive cases list - Turns on own facts

Legislation:

District Court Rules 2005 (WA) r 50(1)(d)
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40
Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 95E, r 95F(1), r

95F(2)

Result:

Appeal allowed

Representation:

Counsel:

Appellant

Ms G Cleary

Respondent : No appearance

Solicitors:

Appellant

Slee Anderson & Pidgeon

Respondent : Not applicable

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

Allesch v Maunz [2000] HCA 40
Brocz v Hughes [2010] WASCA 57; (2010) 41 WAR 84
Gronow v Gronow (1979) 144 CLR 513
Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WADC 33
Rowe v Stoltze [2013] WASCA 92

[2018] WADC 45

JUDGE VERNON

JUDGE VERNON:

Introduction

This is an appeal from a decision of a magistrate.
On 18 October 2017, the magistrate refused the appellant's application to remove proceeding numbered 849 of 2014 (the Proceeding) from the Bunbury Magistrates Court's inactive cases list (the ICL).
The Proceeding was entered into the ICL on 26 July 2017. The operation of r 95F(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (Magistrates Court Rules) would result in the Proceeding being dismissed on 27 January 2018. There is no power to reinstate a case once dismissed for this reason.
Accordingly, in light of my decision that the appeal should be granted and the Proceeding removed from the ICL, I made orders to that effect on 24 January 2018, on the basis that I would later publish my reasons for decision, these are those reasons.
The respondent, who is self-represented, did not appear at the hearing of the application. The respondent had been served with both the notice of appeal and an application for orders in the appeal, heard on 14 December 2017. On that date orders were made listing the appeal for hearing on 24 January 2018. The court's records show that a copy of the orders had been posted to the respondent at his address for service. Accordingly, the appeal was determined in the respondent's absence.

The appeal

The appeal is brought on the grounds that the learned magistrate
erred:

(1)

in fact in that he based his decision on the mistaken belief that another action by the appellant, in the same court and against the respondent's brother, was also on the ICL; and

[2018] WADC 45

JUDGE VERNON

(2) in law in the exercise of his discretion, by failing…

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 Geraty v Kneale

Details

AGLC: Geraty v Kneale [2018] WADC 45
Case: [2018] WADC 45
Decision Date: 24 JANUARY 2018

CaseChat Overview and Summary

In the matter of Geraty v Kneale, the case was heard in the Magistrates Court, where the appellant sought the removal of a case from the inactive cases list. The appellant, Geraty, argued that the case was not truly inactive and that there were ongoing issues requiring judicial attention. Kneale, the respondent, contested the appellant's claim, asserting that the case was correctly classified as inactive, and there were no grounds for its removal.

The primary legal issue before the court was whether the case was indeed inactive or if there were circumstances that warranted its removal from the inactive cases list. The court needed to determine the criteria for classifying a case as inactive and whether Geraty's arguments justified altering this classification. Additionally, the court considered the procedural aspects of making such an application and whether the respondent had a valid defence against the appellant's request.

The court found that the case was properly classified as inactive based on the lack of any significant activity or developments warranting its continuation. The appellant's arguments did not provide sufficient grounds to overturn the classification. The court emphasised the importance of adhering to the established criteria for categorising cases and noted that the respondent had effectively defended against the application. Consequently, the appeal was dismissed, and the case remained on the inactive list.

Orders