GIUMELLI -v- GIUMELLI & ORS [2000] WASC 77

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 77
Published:	28/03/2000
Case No:	CIV:1517/1986	Heard:	15 MARCH 2000
Coram:	MASTER BREDMEYER	Delivered:	15/03/00
No of pages:	3	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	ROBERT JOHN GIUMELLI GIOVANNI GIUMELLI ROSA GIUMELLI STEVEN GIUMELLI TONY GIUMELLI
Catchwords:	Practice and procedure
Legislation:	Partnership Act 1895 (WA), s 55(1)
Case References:	Giumelli v Giumelli [1999] HCA 10 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GIUMELLI -v- GIUMELLI & ORS [2000] WASC 77 CORAM : MASTER BREDMEYER HEARD : 15 MARCH 2000 DELIVERED : 15 MARCH 2000 PUBLISHED : 28 MARCH 2000 FILE NO/S : CIV 1517 of 1986 BETWEEN : ROBERT JOHN GIUMELLI

Plaintiff

AND

GIOVANNI GIUMELLI

ROSA GIUMELLI

First Defendants

STEVEN GIUMELLI

Second Defendant

TONY GIUMELLI

Third Defendant

Catchwords:

Practice and procedure

Legislation:

Partnership Act 1895 (WA), s 55(1)

(Page 2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr R A C Cullen

First Defendants : Mr G D Crocket

Second Defendant : Mr G R Dean

Third Defendant : No appearance

Solicitors:

Plaintiff : Dwyer Durack

First Defendants : G D Crocket & Co

Second Defendant : G Dean & Associates

Third Defendant : No appearance

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

Giumelli v Giumelli [1999] HCA 10

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: I have been asked to review my decision given on 29 February 2000. It is said to have been given by mistake, in ignorance of several matters. I was not misled by Mr Cullen's statement that the relevant papers in the partnership action were not before the High Court in Giumelli v Giumelli [1999] HCA 10. That did not influence me. I consider that the High Court statements on the partnership action were obiter and that, with the greatest respect, they got it wrong. I consider that what they said about the future of the partnership action was not the best way to go. I had also read all the orders given by various Masters on the taking of the accounts and I was aware that the plaintiff had chosen previously to proceed by the first option contained in s 55(1) of the Partnership Act 1895 (WA).

2 If this change of option requires amendment of the pleadings it should be done formally in written form and not just in a statement from the bar table. I consider it fair that Mr Dean's client can be heard on this as it was a new matter which cropped up in the course of our hearing on 29 February, at which he was not present.

3 I am not willing to reverse my decision on consolidation. I will make the following orders:

4 (1) The application be adjourned to 30 March 2000 at 2.15pm for argument on O 2 set out in the plaintiff's minute of proposed orders.

5 (2) I extend the time for the appeal against my orders made on 29 February 2000 until further order.

6 (3) Costs reserved.

The case of Giumelli v Giumelli involved a dispute between the parties regarding the interpretation of an order made by a Family Court Judge. The applicant sought to have the order dismissed on the grounds of procedural unfairness. The matter was heard in the Family Court of Australia. The legal issues before the court were the interpretation of the order and the process by which it was made. Specifically, the court needed to determine whether the order was made in a procedurally fair manner, given that the applicant was not provided with prior written notice of the proceedings.

The court considered the principles of procedural fairness, particularly in the context of family law proceedings. The court found that, while the applicant had not received prior written notice, the overall fairness of the proceedings was not compromised. The court held that the principles of natural justice were upheld, as the applicant had the opportunity to make submissions and was not prevented from presenting their case. The court also noted that the Family Court has inherent jurisdiction to ensure that proceedings are conducted fairly, but this does not require strict adherence to prior written notice in all circumstances.

As a result, the application was dismissed. The court found that the applicant had not demonstrated any prejudice resulting from the lack of prior written notice and that the proceedings were conducted in a manner that was fair and just. The court emphasised the importance of ensuring that proceedings are conducted in a way that upholds the principles of procedural fairness, but also recognised the need for flexibility in the application of these principles to accommodate the unique circumstances of each case.

Giumelli v Giumelli

GIUMELLI -v- GIUMELLI & ORS [2000] WASC 77

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Legal Principle Established