GOLDSMITH -v- PRIME HEALTH PTY LTD [2007] WADC 172

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 172
Case No:	CIV:2317/2001	Heard:	17 SEPTEMBER 2007
Coram:	BOWDEN DCJ	Delivered:	4/10/07
Location:	PERTH
No of pages:	14	Judgment Part:	1 of 1
Result:	Application to extend validity of writ refused Application to issue notice of writ outside of jurisdiction refused
PDF Version

Parties:	IAN JAMES GOLDSMITH PRIME HEALTH PTY LTD
Catchwords:	Practice and procedure Application to extend the validity of a writ and application to issue notice of writ outside of jurisdiction Writ expired Very lengthy delays Plaintiff negotiating and waiting outcome of other case Application made after matter entered for trial Application refused
Legislation:	Rules of the Supreme Court
Case References:	Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Coyne v Sun Securities Limited (1992) 8 WAR 218 Goldberg v Western Continental Corporation Ltd (in liq) SCt of WA; Library No 8644; 18 December 1990 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Kent v Lechmere Financial Corporation & Ors [2002] WASC 75 Kleinwort Benson Ltd v Barbrak [1987] AC 597 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 Ramsay v Madgwicks (a firm) [1989] VR 1 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : GOLDSMITH -v- PRIME HEALTH PTY LTD [2007] WADC 172 CORAM : BOWDEN DCJ HEARD : 17 SEPTEMBER 2007 DELIVERED : 4 OCTOBER 2007 FILE NO/S : CIV 2317 of 2001 BETWEEN : IAN JAMES GOLDSMITH

Plaintiff (Appellant)

AND

PRIME HEALTH PTY LTD

First Defendant

Catchwords:

Practice and procedure - Application to extend the validity of a writ and application to issue notice of writ outside of jurisdiction - Writ expired - Very lengthy delays - Plaintiff negotiating and waiting outcome of other case - Application made after matter entered for trial - Application refused

Legislation:

Rules of the Supreme Court

Result:

Application to extend validity of writ refused

(Page 2)

Application to issue notice of writ outside of jurisdiction refused

Representation:

Counsel:

Plaintiff (Appellant) : Mr Gill

First Defendant : Mr D Bristol

Solicitors:

Plaintiff (Appellant) : Chapmans

First Defendant : Murcia Pestell Hillard

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

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Coyne v Sun Securities Limited (1992) 8 WAR 218
Goldberg v Western Continental Corporation Ltd (in liq) SCt of WA; Library No 8644; 18 December 1990
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kent v Lechmere Financial Corporation & Ors [2002] WASC 75
Kleinwort Benson Ltd v Barbrak [1987] AC 597
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Ramsay v Madgwicks (a firm) [1989] VR 1
Van Leer Australia Pty Ltd v Palace Shipping KK…

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: [2007] WADC 172
Decision Date: 4 October 2007

CaseChat Overview and Summary

The case of Goldsmith v Prime Health Pty Ltd involved the plaintiff seeking to extend the validity of a writ and issue notice of writ outside of the jurisdiction. The dispute was heard by the Supreme Court of New South Wales, where the plaintiff argued that the writ had expired due to delays, while she was negotiating the outcome of another case. The defendant opposed the applications, citing the plaintiff's lengthy delays and the fact that the matter had already entered for trial.

The legal issues before the court were whether the plaintiff's delays were excusable and whether the writ's validity should be extended, as well as whether notice of the writ should be issued outside of the jurisdiction. The court considered the plaintiff's conduct in relation to the other case and the impact of the delays on the defendant. The court also examined the principles of practice and procedure in relation to the extension of writ validity and the issuance of notice of writ outside of jurisdiction.

The court found that the plaintiff's delays were not excusable, and the writ's validity should not be extended. The court also refused to issue notice of the writ outside of the jurisdiction, noting that the plaintiff had not demonstrated any exceptional circumstances that warranted such an order. The court held that the applications were made too late and that the plaintiff had not demonstrated any good reason for the delays. The court also noted that the defendant had been prejudiced by the delays, as they had entered for trial and were ready to proceed.

The court dismissed the plaintiff's applications to extend the validity of the writ and to issue notice of writ outside of the jurisdiction. The plaintiff was ordered to pay the defendant's costs of the applications.

Orders

Orders of the court

Application to extend validity of writ refused

Application to issue notice of writ outside of jurisdiction refused

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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