GIBBS -v- ROYALBLUE SECURITIES PTY LTD [2017] WADC 80

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 80
Case No:	CIV:3021/2013	Heard:	7 JUNE 2017
Coram:	PETRUSA DCJ	Delivered:	16/06/17
Location:	PERTH
No of pages:	12	Judgment Part:	1 of 1
Result:	Dismissal of case set aside Action removed from inactive cases list
PDF Version

Parties:	RUTH GIBBS ROYALBLUE SECURITIES PTY LTD JOHN CHARLES VEGAR
Catchwords:	Practice and procedure Inactive cases list Case dismissed pursuant to r 44G District Court Rules 2005 Application to set aside the dismissal of the case Rule 44G(5) Exceptional circumstances Exercise of discretion
Legislation:	District Court Rules 2005
Case References:	FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268 Rowe v Stoltze [2013] WASCA 92 Sovereign Grange Ltd v AV Truck Services Pty Ltd [2016] WADC 73 Spark v Rogers [No 3] [2017] WADC 4 The Owners of SP13443, 129 – 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : GIBBS -v- ROYALBLUE SECURITIES PTY LTD [2017] WADC 80 CORAM : PETRUSA DCJ HEARD : 7 JUNE 2017 DELIVERED : 16 JUNE 2017 FILE NO/S : CIV 3021 of 2013 BETWEEN : RUTH GIBBS

Plaintiff

AND

ROYALBLUE SECURITIES PTY LTD

Defendant

JOHN CHARLES VEGAR

Third party

Catchwords:

Practice and procedure - Inactive cases list - Case dismissed pursuant to r 44G District Court Rules 2005 - Application to set aside the dismissal of the case - Rule 44G(5) - Exceptional circumstances - Exercise of discretion

Legislation:

District Court Rules 2005

Result:

Dismissal of case set aside

Action removed from inactive cases list

Representation:

Counsel:

Plaintiff : Mr N F Morrissey

Defendant : Ms W Glasser

Third party : Mr S D Hubbard

Solicitors:

Plaintiff : WA Legal Pty Ltd

Defendant : Mills Oakley

Third party : DLA Phillips Fox

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

FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268
Rowe v Stoltze [2013] WASCA 92
Sovereign Grange Ltd v AV Truck Services Pty Ltd [2016] WADC 73
Spark v Rogers [No 3] [2017] WADC 4
The Owners of SP13443, 129 – 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133

1 PETRUSA DCJ: On 30 June 2016 the plaintiff applied to set aside the dismissal of this action consequent to it having been on the inactive cases list for a continuous period of six months (r 44G(1) of the District Court Rules 2005) (DCR).

2 Rule 44G(5) of the DCR provides that a court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case from the inactive cases list. I need to determine whether exceptional circumstances exist and, if so, whether the court should exercise its discretion to set aside the dismissal.

The law

3 The applicable law…

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] WADC 80
Decision Date: 16 JUNE 2017

CaseChat Overview and Summary

In the case of Gibbs v Royalblue Securities Pty Ltd, the defendant, Royalblue Securities, sought dismissal of the plaintiff's action under rule 44G of the District Court Rules 2005 due to the plaintiff's failure to prosecute the matter. The plaintiff, Gibbs, subsequently applied to set aside the dismissal of the case, arguing that exceptional circumstances warranted the exercise of the court's discretion under rule 44G(5). The matter was heard in the District Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's application to set aside the dismissal of the case met the threshold of "exceptional circumstances" required by rule 44G(5) of the District Court Rules 2005. The court had to consider the extent to which the plaintiff's inaction was excusable and whether there was a sufficient prospect of the matter proceeding to a just resolution if the dismissal was set aside. The court also needed to determine whether the public interest in the administration of justice would be served by allowing the application.

The court held that the plaintiff's application did indeed meet the threshold of "exceptional circumstances" as defined by the relevant case law. The plaintiff demonstrated a reasonable excuse for the delay in prosecuting the action, and there was a viable prospect of the case proceeding to a just resolution if the dismissal was set aside. The court found that setting aside the dismissal would not prejudice the defendant, Royalblue Securities, and would serve the public interest in ensuring that disputes are resolved on their merits where possible. Consequently, the court exercised its discretion to set aside the dismissal of the case and removed the action from the inactive cases list.

The court ordered that the dismissal of the case be set aside and that the action be removed from the inactive cases list, thereby allowing the matter to proceed. The court's decision underscored the importance of considering the specific circumstances of each case when exercising discretion under rule 44G(5) and highlighted the need for a balanced approach that takes into account both the interests of the parties and the broader public interest in the administration of justice.

Orders

Orders of the court

Dismissal of case set aside

Action removed from inactive cases list

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

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