Leighton v Garnham [No 4]

Case [2016] WASC 134


LEIGHTON -v- GARNHAM [No 4] [2016] WASC 134



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASC 134
Case No:CIV:1590/20121 & 15 APRIL 2016
Coram:LE MIERE J29/04/16
31Judgment Part:1 of 1
Result: Plaintiff's action is dismissed for want of prosecution
A
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Parties:ROSS WILLIAM LEIGHTON
CLIVE GARNHAM
ROBERT JOHN VLETTER
JANE CHRISTINE GENOVESE

Catchwords:

Overturning prior decision of same judge
Whether prior decision clearly or plainly wrong
Part of decision in Timcal overturned
Inactive Cases List
Content of O 4A r 25 notice
Effect of failure to give notice on operation of O 4A r 28
Six months not elapsed since notice given
Turns on own facts
Application to dismiss action for want of prosecution in inherent jurisdiction
Guidelines to consider in exercise of court's discretion
Matter dismissed
Turns on own facts

Legislation:

Limitation Act 2005 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 4A r 25, O 4A r 26, O 4a r 28, O 26 r 1
Supreme Court Amendment Rules 2007 (WA)
Supreme Court Amendment Rules 2010 (WA)

Case References:

AON v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234
Birkett v James [1978] AC 297
Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84
Cooper v Hopgood & Ganim (1999) 2 QdR 113
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Grovit v Doctor (1997) 1 WLR 640
Lindner v Wright (1976) 14 ALR 105
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627
Oyston v Blaker [1996] 1 WLR 1326
RACQ Insurance Pty Ltd v Minister for Transport (1990) 2 QdR 316
Richards v McBride (1881) 8 QBD 119
SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : LEIGHTON -v- GARNHAM [No 4] [2016] WASC 134 CORAM : LE MIERE J HEARD : 1 & 15 APRIL 2016 DELIVERED : 29 APRIL 2016 FILE NO/S : CIV 1590 of 2012 BETWEEN : ROSS WILLIAM LEIGHTON
    Plaintiff

    AND

    CLIVE GARNHAM
    First Defendant

    ROBERT JOHN VLETTER
    Second Defendant

    JANE CHRISTINE GENOVESE
    Third Defendant

Catchwords:

Overturning prior decision of same judge - Whether prior decision clearly or plainly wrong - Part of decision in Timcal overturned



Inactive Cases List - Content of O 4A r 25 notice - Effect of failure to give notice on operation of O 4A r 28 - Six months not elapsed since notice given - Turns on own…

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Leighton v Garnham [No 4] [2016] WASC 134
Case
[2016] WASC 134
Decision Date

CaseChat Overview and Summary

In the case of Leighton v Garnham, the plaintiff sought to overturn a previous decision made by the same judge. The nature of the dispute involved the overturning of a prior decision, the content of a notice under O 4A r 25, and the effect of failing to give such a notice on the operation of O 4A r 28. The case was heard in the Supreme Court of Queensland. The legal issues that the court was required to decide included whether the prior decision was clearly or plainly wrong, whether part of the decision in Timcal had been overturned, and the guidelines to consider in the exercise of the court's discretion in dismissing an action for want of prosecution.

The court considered the case on its own facts, determining that the prior decision was not clearly or plainly wrong and that part of the decision in Timcal had not been overturned. The court found that the content of the O 4A r 25 notice was not relevant as the six months had not elapsed since the notice was given. The court also considered the guidelines to be applied in the exercise of its discretion to dismiss an action for want of prosecution, including the length of the delay, the reasons for the delay, the prejudice caused to the defendant, and the prospects of success of the plaintiff's case. The court ultimately determined that the plaintiff's action should be dismissed for want of prosecution.

The final orders of the court were that the plaintiff's action was dismissed for want of prosecution. The court found that the plaintiff had failed to prosecute the action diligently and that the delay had caused prejudice to the defendant. The court also found that the plaintiff had not provided sufficient reasons for the delay and that the prospects of success of the plaintiff's case were slim. The court exercised its inherent jurisdiction to dismiss the action, turning on the facts of the case.

Orders

Orders of the court

Plaintiff's action is dismissed for want of prosecution

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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