La Rosa v Chelvanayagam - [2004] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LA ROSA -v- CHELVANAYAGAM & ANOR [2004] WADC 42

CORAM: MULLER DCJ

HEARD: 5 MARCH 2004

DELIVERED : 12 MARCH 2004

FILE NO/S: CIV 3209 of 1994

BETWEEN: ANTONIO LA ROSA
Plaintiff
AND
DAVID CHELVANAYAGAM
First Defendant
THE MINISTER FOR HEALTH FOR THE STATE OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Appeal from Deputy Registrar's decision disallowing first defendant's application to dismiss plaintiff's action for want of prosecution - 10 year delay between issue of writ and date of application - No statement of claim served on first defendant - Explanation for delay unacceptable - Alleged inaction by first defendant - Plaintiff statute barred if appeal allowed - Prejudice to first defendant if action allowed to proceed

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     Mr I L K Marshall
First Defendant             :     Mr P D Quinlan
Second Defendant         :     Not applicable

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First Defendant             :     Blake Dawson Waldron
Second Defendant         :     Not applicable

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
Jakovljavic v L & B Doslov [2000] WASCA 131
Khavounitis v NRMA Insurance Limited (1999) TASSC 2
Latrobe Country Credit Co‑op Ltd v Smith [1999] 1 VR 440
Lewandowski v Lovell (1994) 11 WAR 124
State of Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294
Tipperary Developments Pty Ltd v KMG Hungerfords (a firm) BC9703622, 12 August 1997
Ulowski v Miller [1968] SASR 277

Case(s) also cited:

Brisbane South Regional Authority v Taylor (1996) 186 CLR 541
Duke v Royalstar Pty Ltd [2001] WASCA 273

MULLER DCJ: This is an appeal from a decision of a Deputy Registrar of the Court on 17 November 2003 disallowing the first defendant's application to dismiss the plaintiff's action for want of prosecution.
On an appeal from a Deputy Registrar of the Court an application must be determined afresh: Hazart v Rademaker (1993) 11 WAR 26. The same affidavits that were before the Deputy Registrar were relied upon by the parties at the appeal. The plaintiff relied principally on the affidavit of John Nicholas D'Angelo sworn on 16 October 2003. The first defendant relied on his affidavit sworn on 11 September 2003.

The law to be applied

A convenient starting point in considering an application to dismiss proceedings for want of prosecution is O 1, r 4A of the Rules of the Supreme Court 1971 which provides:
"The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just termination of the issues bona fide in contention between the parties and the preparation of the case for trial."
The case management principles applicable to this type of situation were outlined…

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 La Rosa v Chelvanayagam

Details

AGLC: La Rosa v Chelvanayagam [2004] WADC 42
Case: [2004] WADC 42
Decision Date: 12 MARCH 2004

CaseChat Overview and Summary

In this matter, the plaintiff sought an appeal against the Deputy Registrar's decision to disallow the first defendant's application to dismiss the plaintiff's action for want of prosecution. The case was brought before the court due to a ten-year delay between the issue of the writ and the date of the application, as well as the absence of a statement of claim served on the first defendant. The plaintiff argued that the delay was attributable to the alleged inaction of the first defendant, while the first defendant contended that the plaintiff's explanation for the delay was unacceptable. The first defendant further argued that the plaintiff was statute-barred if the appeal were allowed and that there would be prejudice to the first defendant if the action were to proceed.

The central legal issue before the court was whether the plaintiff's delay in pursuing the action could be excused and whether the first defendant's application to dismiss the action for want of prosecution should be allowed. The court had to consider the balance of the equities, the extent to which the delay was attributable to the first defendant's inaction, and the prejudice to the first defendant if the action were to proceed.

The court found that the plaintiff's explanation for the delay was not acceptable, and the delay was primarily due to the plaintiff's inaction. However, the court also considered the first defendant's alleged inaction and determined that it had contributed to the delay. The court held that the first defendant's application to dismiss the action for want of prosecution should be allowed, as the balance of the equities favoured the first defendant, and there would be significant prejudice to the first defendant if the action were to proceed. The court also found that the plaintiff was statute-barred if the appeal were allowed.

As a result of the court's decision, the appeal was dismissed, and the Deputy Registrar's decision to disallow the first defendant's application to dismiss the plaintiff's action for want of prosecution was upheld. The court's decision effectively brought an end to the plaintiff's action against the first defendant.

Orders