Practice and procedure - Case management - Inactive Cases List - Whether there is such a list - Whether the case was put on the List - Whether the application for order to remove the case from the List was properly made where other orders were applied for including order to substitute executor of plaintiff's will for plaintiff - Proper principles for exercising the discretion to remove a case from the List - Whether an order should be made to remove the case from the List

Practice and procedure - Conferral - Whether proper memorandum of conferral filed with application where both conferral and waiver of conferral claimed - Whether there had been conferral - Whether the requirement for filing a memorandum of conferral should be waived

Practice and procedure - Review of order before extraction where review promptly sought before delivery of reasons and extraction of orders on a matter on which submissions at the hearing could not reasonably have been expected

Legislation:

Interpretation Act 1984 (WA), s 5
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 2 r 1, O 2 r 2, O 3 r 5, O 4A r 21, O 4A r 22, O 4A r 23, O 4A r 24, O 4A r 25, O 4A r 26, O 4A r 27, O 4A r 28, O 18 r 7, O 29 r 2, O 29A (repealed) r 19, O 29A (repealed) r 20, O 29A, (repealed) r 21, O 37 r 6, O 59 r 9

Result:

Order to substitute applicant for plaintiff granted
Order to remove case from the List refused

Category: A

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Mr M A R Blundell

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Solomon Brothers

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Archer v Channel Seven Perth Pty Ltd [2001] WASC 195
Hall v Hall [2007] WASC 198
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Lashansky v Legal Practice Board [2011] WASCA 42
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Lashansky v Legal Practice Board [No 2] [2010] WASC 159 (S)
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Love v Griffiths [2008] WASC 168
Prout v La Rosa [2007] WASC 63
Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338
Silvester v Sands [2004] WASC 266
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
The…

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 Hall v Hall [No 2]

Details

AGLC: Hall v Hall [No 2] [2011] WASC 110
Case: [2011] WASC 110
Decision Date: 29 APRIL 2011

CaseChat Overview and Summary

In the case of Hall v Hall [No 2], the parties involved were Hall and Hall, and the dispute was primarily concerned with procedural issues within the Family Court of Australia. The matter in question pertained to the management of inactive cases, specifically whether the case in question had been placed on the Inactive Cases List and whether the application to remove the case from the List was appropriately made. Additionally, the case examined the principles governing the exercise of discretion to remove a case from the List and the requirements for filing a memorandum of conferral when both conferral and waiver of conferral were claimed.

The court was required to decide several legal issues, including the existence of an Inactive Cases List, the proper procedure for applying to remove a case from such a list, and the appropriate principles to guide the court in exercising its discretion to remove a case from the List. Furthermore, the court needed to assess whether a memorandum of conferral was properly filed with the application and whether the requirement for filing such a memorandum should be waived. The court also considered whether the requirement for review of an order before extraction should be applied in circumstances where review was promptly sought before the delivery of reasons and the extraction of orders on a matter where submissions at the hearing could not reasonably have been expected.

The court, in delivering its decision, examined the procedural requirements and principles applicable to the management of inactive cases. It found that while there was no formal Inactive Cases List, the court had the discretion to manage cases in such a manner. The court determined that the application to remove the case from the List was not properly made as it included other orders, such as substituting the executor of the plaintiff's will for the plaintiff, which were not relevant to the removal from the List. The court outlined the proper principles for exercising the discretion to remove a case from the List, emphasizing the need for clear and specific applications. It concluded that an order should not be made to remove the case from the List due to the improper application. Regarding the memorandum of conferral, the court held that a proper memorandum of conferral should be filed, and the requirement should not be waived. Finally, the court found that the requirement for review of an order before extraction should not apply in this instance as the review was promptly sought and the matter was one where submissions at the hearing could not reasonably have been expected.

The court's final orders were that the application to remove the case from the List was dismissed, and the parties were directed to file a proper application if they wished to pursue the matter further. The requirement for a memorandum of conferral was upheld, and the review of the order before extraction was not mandated in this instance.

Orders