IBRAHIM -v- WADWORTH [2009] WASC 317

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 317
Case No:	CIV:2005/2009	Heard:	19 OCTOBER 2009
Coram:	LE MIERE J	Delivered:	5/11/09
No of pages:	9	Judgment Part:	1 of 1
Result:	Plaintiff's application dismissed Defendant's application granted
Category:	B
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Parties:	TAREK IBRAHIM MAGAN WADWORTH
Catchwords:	Practice and procedure Defamation Plaintiff's application for extension of time to commence action Whether it was not reasonable for plaintiff to commence action in one year Limitation Act 2005 (WA) s 40 and s 44 Turns on own facts Practice and procedure Defamation Application to set aside writ and service of writ Alternatively to strike out indorsement of writ and dismiss action Rules of the Supreme Court 1971 (WA) O 20 r 19(1) Turns on own facts
Legislation:	Fair Trading Act 1987 (WA), s 10 Limitation Act 2005 (WA), s 3(1), s 15, s 40, s 44 Rules of the Supreme Court 1971 (WA), O 6 r 1(1), O 20 r 19(1)
Case References:	Smith v McCusker QC [2000] WASCA 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : IBRAHIM -v- WADWORTH [2009] WASC 317 CORAM : LE MIERE J HEARD : 19 OCTOBER 2009 DELIVERED : 5 NOVEMBER 2009 FILE NO/S : CIV 2005 of 2009 BETWEEN : TAREK IBRAHIM

Plaintiff

AND

MAGAN WADWORTH

Defendant

Catchwords:

Practice and procedure - Defamation - Plaintiff's application for extension of time to commence action - Whether it was not reasonable for plaintiff to commence action in one year - Limitation Act 2005 (WA) s 40 and s 44 - Turns on own facts

Practice and procedure - Defamation - Application to set aside writ and service of writ - Alternatively to strike out indorsement of writ and dismiss action - Rules of the Supreme Court 1971 (WA) O 20 r 19(1) - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 10

Limitation Act 2005 (WA), s 3(1), s 15, s 40, s 44
Rules of the Supreme Court 1971 (WA), O 6 r 1(1), O 20 r 19(1)

(Page 2)

Result:

Plaintiff's application dismissed

Defendant's application granted

Category: B

Representation:

Counsel:

Plaintiff : In person

Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : In person

Defendant : Pynt & Partners

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

Smith v McCusker QC [2000] WASCA 320

(Page 3)

LE MIERE J

Introduction

1 Some time ago the plaintiff commenced a de facto relationship with his former partner. There is a child of their relationship. There have been numerous applications and hearings in the Family Court relating to the parenting of their child. The plaintiff was self represented. His former partner was represented by the defendant, a solicitor. On or about 21 November 2006 a trial relating to parenting matters between the plaintiff and his former partner was heard before a judge of the Family Court of Western Australia. The plaintiff was self represented. His former partner was represented by the defendant. During…

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 Ibrahim v Wadworth

Details

AGLC: Ibrahim v Wadworth [2009] WASC 317
Case: [2009] WASC 317
Decision Date: 5 NOVEMBER 2009

CaseChat Overview and Summary

In the case of Ibrahim v Wadworth, the plaintiff sought an extension of time to commence an action for defamation against the defendant. The plaintiff applied to the Supreme Court of Western Australia for an extension of time to commence the action, arguing that it was not reasonable for them to have commenced the action within one year as required by the Limitation Act 2005 (WA) sections 40 and 44. The defendant opposed the plaintiff's application, arguing that the plaintiff had not demonstrated sufficient grounds for an extension of time. The court was required to decide whether it was reasonable for the plaintiff to have commenced the action within the one-year period and whether there were exceptional circumstances that warranted an extension of time.

The court considered the provisions of the Limitation Act 2005 (WA) and the plaintiff's reasons for not commencing the action within the one-year period. The court found that the plaintiff had not demonstrated any exceptional circumstances that warranted an extension of time. The court held that it was reasonable for the plaintiff to have commenced the action within the one-year period and that the plaintiff had not demonstrated any exceptional circumstances that would warrant an extension of time. The court also considered the defendant's application to set aside the writ and service of the writ, or alternatively to strike out the indorsement of the writ and dismiss the action. The court found that the defendant's application was well-founded and granted the application.

The court dismissed the plaintiff's application for an extension of time to commence the action and granted the defendant's application to set aside the writ and service of the writ, or alternatively to strike out the indorsement of the writ and dismiss the action. The court held that the plaintiff had not demonstrated any exceptional circumstances that warranted an extension of time and that it was reasonable for the plaintiff to have commenced the action within the one-year period. The court also held that the defendant's application was well-founded and that the writ and service of the writ should be set aside, or alternatively the indorsement of the writ should be struck out and the action dismissed. The court dismissed the plaintiff's application and granted the defendant's application.

Orders

Orders of the court

Plaintiff's application dismissed

Defendant's application granted

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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