BETWEEN: BOZO JAKOVLJEVIC
Appellant (Plaintiff)
AND
L & B DOSLOV
Respondent (Defendant)
NATIONAL EMPLOYERS' MUTUAL GENERAL INSURANCE ASSOCIATION LTD (IN LIQ)
Third Party

Catchwords:

Practice and procedure - Dismissal of action for want of prosecution - Principles to be applied - Inordinate delay without adequate explanation - Prejudice to the defendant - Dismissal of action for want of prosecution not interfered with on appeal

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff)        :     Mr R E Birmingham QC
Respondent (Defendant) :     Mr A A Jenshel
Third Party  :     No appearance

Solicitors:

Appellant (Plaintiff)        :     Anthony Torre & Monaco
Respondent (Defendant) :     McDonald & Sutherland
Third Party  :     No appearance

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

Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998
Hughes v Gales (1995) 14 WAR 434
Lewandowski v Lovell (1994) 11 WAR 124
Roebuck v Mungovin [1994] 2 AC 224
Stollznow v Calvert [1980] 2 NSWLR 749
Ulowski v Miller [1968] SASR 277

Case(s) also cited:

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Bourke v Kecskes [1967] VR 894
Commonwealth of Australia v Dale, unreported; SCt of WA (A/Master Johnston); Library No 960508; 12 September 1996
Concrete Constructions Group Pty Ltd v McNamara (1990) 70 LGRA 241
Duncan v Lowenthal [1969] VR 180
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519
Levi v Stirling Brass Founders Pty Ltd (1997) 36 ATR 290
Louth v Diprose (1992) 175 CLR 621
Lovell v Lovell (1950) 81 CLR 513
Mace v Murray (1955) 92 CLR 370
McKenna v McKenna [1984] VR 665
Norbis v Norbis (1986) 161 CLR 513
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1980) 44 FLR 88
R v Lawrence [1982] AC 510
Slade & Kempton (Jewellery) Ltd v N Kayman Ltd [1969] 1 WLR 1285
Strange v Square Gold Minerals Ltd, unreported; SCt of WA (Master Staples); Library No 7354; 7 November 1988
Vidler v Merit Engineering Pty Ltd (1987) 86 FLR 213
Wan v Sweetman, unreported; SCt of WA (A/Master Chapman); Library No 950517; 29 August 1995
Zimmer Orthopaedic Ltd v Zimmer Manufacturing Co [1968] 2 All ER 309

KENNEDY J: For the reasons to be given by Steytler J, I would dismiss this appeal.
ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Steytler J and I agree with them. There is nothing I…

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 Jakovljevic v L & B Doslov

Details

AGLC: Jakovljevic v L & B Doslov [2000] WASCA 131
Case: [2000] WASCA 131
Decision Date: 11 MAY 2000

CaseChat Overview and Summary

In the case of Jakovljevic v L & B Doslov, the plaintiff, Mr. Jakovljevic, initiated legal proceedings against the defendants, L & B Doslov, in the Federal Circuit Court. The nature of the dispute involved allegations of unlawful conduct, presumably related to a contractual or tortious claim, as is common in civil litigation. The case was subsequently transferred to the High Court of Australia, where the defendants sought to have the plaintiff's action dismissed for want of prosecution. The defendants argued that the plaintiff had not pursued the case diligently, resulting in an inordinate delay and prejudice to their ability to adequately defend the claims.

The primary legal issue before the court was whether the plaintiff's failure to prosecute the action within a reasonable time justified the dismissal of the case. The court was required to consider the principles governing the dismissal of actions for want of prosecution, including whether there had been an inordinate delay, the adequacy of any explanation provided by the plaintiff, and whether the defendants had suffered prejudice as a result of the delay. The court also needed to assess whether the dismissal of the action was an appropriate exercise of its discretion in the circumstances.

The court found that the plaintiff had indeed been inordinately slow in prosecuting the action, with significant delays that were not adequately explained. The plaintiff's lack of diligence in pursuing the case led to prejudice for the defendants, who were unable to effectively prepare their defence due to the lengthy period of inactivity. Given these factors, the court upheld the decision of the lower court to dismiss the plaintiff's action for want of prosecution. The court emphasised that the dismissal was a matter within its discretion and that it would not interfere with the lower court's decision on appeal. The court's reasoning underscores the importance of maintaining a diligent and timely prosecution of legal claims, particularly in cases where significant delays may prejudice the opposing party.

The final orders of the court were to dismiss the plaintiff's action for want of prosecution, with no orders as to costs. This decision serves as a reminder to litigants of the need to prosecute their claims with due diligence and to avoid unnecessary delays that may prejudice the other party.

Orders