JENNINGS CONSTRUCTION LTD -v- McNULTY [2000] WASCA 348

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 348
Court:	THE FULL COURT (WA)
Case No:	FUL:149/1999	Heard:	11 & 18 APRIL 2000
Coram:	MALCOLM CJ WALLWORK J MURRAY J	Delivered:	15/11/00
No of pages:	29	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	JENNINGS CONSTRUCTION LTD MARK DENNIS PATRICK McNULTY
Catchwords:	Appeal and new trial Appeal by leave Dismissal of action for want of prosecution Order by Deputy Registrar dismissing action in District Court for want of prosecution set aside by Judge Delay by both parties No specific prejudice to appellant
Legislation:	Rules of the District Court 1996 O 4 r 1 r 2 r 3
Case References:	Birkett v James [1978] AC 297 Hazart v Rademaker (1993) 11 WAR 26 Hughes v Gales (1995) 14 WAR 434 Lewandowski v Lovell (1994) 11 WAR 124 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JENNINGS CONSTRUCTION LTD -v- McNULTY [2000] WASCA 348 CORAM : MALCOLM CJ

WALLWORK J

MURRAY J

HEARD : 11 & 18 APRIL 2000 DELIVERED : 15 NOVEMBER 2000 FILE NO/S : FUL 149 of 1999 BETWEEN : JENNINGS CONSTRUCTION LTD

Appellant (Defendant)

AND

MARK DENNIS PATRICK McNULTY

Respondent (Plaintiff)

Catchwords:

Appeal and new trial - Appeal by leave - Dismissal of action for want of prosecution - Order by Deputy Registrar dismissing action in District Court for want of prosecution set aside by Judge - Delay by both parties - No specific prejudice to appellant

Legislation:

Rules of the District Court 1996 O 4 r 1 r 2 r 3

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant (Defendant) : Mr G I Macnish

Respondent (Plaintiff) : Mr A J Castley

Solicitors:

Appellant (Defendant) : Cocks Macnish

Respondent (Plaintiff) : Bradford & Co

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

Birkett v James [1978] AC 297
Hazart v Rademaker (1993) 11 WAR 26
Hughes v Gales (1995) 14 WAR 434
Lewandowski v Lovell (1994) 11 WAR 124
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997

(Page 3)

1 MALCOLM CJ: This is an appeal by leave of this Court granted on 13 September 1999 to the appellant ("Jennings") to appeal against orders made by Nisbet DCJ on 2 March 1999, by which the learned Judge allowed an appeal and set aside an order made by Deputy Registrar Hewitt in the District Court, on 29 September 1998 that the action by the respondent ("Mr McNulty") against Jennings be dismissed for want of prosecution. In addition, the learned Judge dismissed an appeal by Mr McNulty against an order made by the Deputy Registrar refusing him the costs of his application. An order dismissing an…

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 Jennings Construction Ltd v McNulty

Details

AGLC: Jennings Construction Ltd v McNulty [2000] WASCA 348
Case: [2000] WASCA 348
Decision Date: 15 NOVEMBER 2000

CaseChat Overview and Summary

Jennings Construction Limited sought to appeal against a decision of a Judge that set aside an order by a Deputy Registrar of the District Court that dismissed their action for want of prosecution. The appeal was by leave. McNulty, the respondent, sought to dismiss the appeal. Both parties had contributed to the delay in the proceedings. The appeal was dismissed. The respondent argued that there was no specific prejudice to the appellant as a result of the delay and that the Judge’s order setting aside the Deputy Registrar’s order was correct. The appeal was dismissed because the Judge’s order setting aside the Deputy Registrar’s order was not an appealable order, and the appeal was therefore an abuse of process. The appeal was dismissed with costs.

The court was required to determine whether the Judge’s order setting aside the Deputy Registrar’s order was appealable and whether the appeal was an abuse of process. The court found that the Judge’s order was not appealable and that the appeal was an abuse of process. The court held that the Judge’s order was not appealable because it was interlocutory in nature and did not finally determine the proceedings. The court also held that the appeal was an abuse of process because it was brought despite there being no specific prejudice to the appellant as a result of the delay in the proceedings. Both parties had contributed to the delay in the proceedings, and there was no evidence that the appellant would be prejudiced if the appeal were to proceed. The court found that the appeal was an abuse of process and dismissed it with costs.

Orders

Orders of the court

Appeal dismissed

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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