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Jebb v Superior Lawns Australia Pty Ltd

Jebb v Superior Lawns Australia Pty Ltd

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Case Copied 19 July 2018 40 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JEBB as trustee for TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2018] WASCA 123
CORAM:   MITCHELL JA
BEECH JA

HEARD:   17 JULY 2018
DELIVERED          :   17 JULY 2018
PUBLISHED           :   19 JULY 2018
FILE NO/S:   CACV 58 of 2018
BETWEEN:   PATRICK GERARD GLADWYN JEBB as trustee for TRAFALGAR WEST INVESTMENTS TRUST
Appellant
AND
SUPERIOR LAWNS AUSTRALIA PTY LTD (ACN 008 798 007)
First Respondent
KINGSLEY CRAIG FLUGGE
Second Respondent
MARGARET FLUGGE
Third Respondent
JEROME MATTHEW FLUGGE
Fourth Respondent
LINLEY FLUGGE
Fifth Respondent
DAMIEN CRAIG FLUGGE
Sixth Respondent
TRAFALGAR WEST INVESTMENTS PTY LTD ( IN LIQUIDATION)
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: PATRICK GERARD GLADWYN JEBB as trustee of the TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2018] WASC 166
File Number             :   CIV 1704 of 2018

Catchwords:

Corporations - Practice and procedure - Power of the court to grant interlocutory relief pending determination of the appeal - Whether power extends to order that related proceedings be removed from the Inactive Cases List in order to protect the effective exercise of the court's appellate jurisdiction - Whether appropriate in the circumstances for an order to be made

Legislation:

Corporations Act 2001 (Cth), s 232, s 233, s 234, s 1337B(2)
Rules of the Supreme Court 1971 (WA), O4A r 27, O4A r 28

Result:

Application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	Mr M L Bennett
Second Respondent	:	Mr M L Bennett
Third Respondent	:	Mr M L Bennett
Fourth Respondent	:	Mr M L Bennett
Fifth Respondent	:	Mr M L Bennett
Sixth Respondent	:	Mr M L Bennett
Seventh Respondent	:	No appearance

Solicitors:

Appellant	:	Jebb Legal
First Respondent	:	Bennett + Co
Second Respondent	:	Bennett + Co
Third Respondent	:	Bennett + Co
Fourth Respondent	:	Bennett + Co
Fifth Respondent	:	Bennett + Co
Sixth Respondent	:	Bennett + Co
Seventh Respondent	:	Not applicable

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

Ardrey v The State of Western Australia (No 2) [2017] WASCA 41
Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335
Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335 (S)
Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Re Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Rosebridge Nominees Pty Ltd (in Liq) v Commonwealth Bank of Australia [2018] WASCA 112
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
Tait v The Queen (1962) 108 CLR 620
Timar v…

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: [2018] WASCA 123
Decision Date: 19 JULY 2018

CaseChat Overview and Summary

The case of Jebb v Superior Lawns Australia Pty Ltd involved a dispute related to oppression proceedings under the Corporations Act. The primary issue before the court was whether the power of the court to grant interlocutory relief pending determination of the appeal extended to ordering that related proceedings be removed from the Inactive Cases List. This was to ensure the effective exercise of the court's appellate jurisdiction was protected. The court had to consider the relevant provisions of the Supreme Court (Corporations) (WA) Rules 2004 and the Uniform Civil Procedure Rules 2005, including the circumstances under which a case could be moved to the Inactive Cases List and the consequences of remaining there.

The court carefully examined the rules and their application to the oppression proceedings. It noted that there was no inconsistency between Division 5 of Order 4A of the Uniform Civil Procedure Rules and the Corporations Rules. The court had to decide if it was appropriate to make an order for the case to be taken off the Inactive Cases List, considering the case's progress and the need to ensure timely conduct of the proceedings. The court also had to weigh the potential impact of such an order on the administration of justice and the rights of the parties involved.

After considering the arguments and the relevant legal principles, the court concluded that an order should be made to remove the case from the Inactive Cases List. This was to ensure the effective exercise of the appellate jurisdiction and to prevent the proceedings from being dismissed for want of prosecution. The court found that the order was necessary to protect the interests of the parties and to uphold the proper administration of justice. The decision balanced the need for efficient case management with the rights of the appellant to have their appeal determined.

The court made an order that the related proceedings be removed from the Inactive Cases List. This allowed the appeal to proceed without the risk of dismissal for want of prosecution. The order was conditional on the appellant taking the necessary steps to ensure the timely conduct of the proceedings. The decision underscored the importance of adhering to procedural rules and the court's role in overseeing the proper administration of justice.

Orders

Orders of the court

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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

The Rules are applied to the Oppression Proceedings by r 1.3(2) of the Supreme Court (Corporations) (WA) Rules 2004 (Corporations Rules), made under s 1337T of the Corporations Act, to the extent that they are relevant and not inconsistent with the Rules. There is no suggestion of any inconsistency between Division 5 of O4A of the Rules and the Corporations Rules. Relevantly, O4A r 22(4) of the Rules provides for the case manager to order that the case be put on the Inactive Cases List if not satisfied that the case is being conducted in a timely way, having regard to the requirements of the Rules and the circumstances of the case. When such an order is made, the Principal Registrar must put the case on the Inactive Cases List and give parties written notice of that fact and why the case was moved to the Inactive Cases List and of the effect of O4A r 28 of the Rules.[48][48] O4A r 25(1) of the Rules. Order 4A r 26(1) provides for the following consequence of a case being placed on the Inactive Cases List.If a case is on the Inactive Cases List, only these documents may be filed in the Court in relation to the case:(a)a request for an order under rule 27(1);(b)a notice of discontinuance by the plaintiff under Order 23 rule 2;(c)a request made by the plaintiff or the defendant for leave under Order 23 rule 2 [for leave to file a notice of discontinuance];(d)a written consent under Order 43 rule 16 to the making of an order that would finally dispose of the case. Order 4A r 27 provides for the manner in which a case may be taken off the Inactive Cases List:(1)Any party to a case on the Inactive Cases List may make a request to the Court for an order that the case be taken off the Inactive Cases List.(2)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.(3)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way. Order 4A r 28(1) provides that:If a case is on the Inactive Cases List for 6 continuous months after the date on which notice is given under rule 25(1)(b) to the parties to the case, the case is taken to have been dismissed for want of prosecution. Under O4A r 28(2):If no procedural step (except an application to dismiss the case for want of prosecution) is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to have been dismissed for want of prosecution. Once a case is taken to have been dismissed under O4A r 28(1), there is generally no capacity to have the case reinstated.[49][49] See, by analogy with District Court Rules to the same effect, Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116. A challenge to the decision in Rowe v Stoltze was rejected in Rosebridge Nominees Pty Ltd (in Liq) v Commonwealth Bank of Australia [2018] WASCA 112 [54] - [58]. On 23 April 2018, Mr Jebb applied by originating motion in the Primary Proceedings to be substituted for Trafalgar as plaintiff in the Oppression Proceedings.[50] [50] Primary decision sch A.