LINTO -v- WEST & ORS [2000] WASC 165

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 165
Case No:	CIV:2434/1999	Heard:	14 JUNE 2000
Coram:	MASTER SANDERSON	Delivered:	23/06/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Application conceded in part Remainder of application fails
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Parties:	LESLIE REGINALD LINTO MAVIS IRENE WEST DONALD JAMES WEST (as Executrix and Executor of the Will of IDA ALMA LINTO (DEC)) GLENYS LYAL LINTO
Catchwords:	Practice and procedure Application to strike out parts of affidavit in support of application Turns on its own facts
Legislation:	Inheritance (Family and Dependants Provision) Act 1972 Rules of the Supreme Court, O 37 r 6(1), r 6(2)
Case References:	Brewster v Sewell (1820) 106 ER 672 Godfrey v Woolworths (WA) Pty Ltd, unreported; SCt of WA (Miller J); Library No 980485; 25 August 1998 Low v Perpetual Trustees WA Ltd, unreported; SCt of WA (Master Adams); Library No 940552; 28 September 1984 Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988 Commissioner for Railways (NSW) v Young (1961) 106 CLR 535 Hughes v National Trustees Executors and Agency Co (1978) 143 CLR 134 Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LINTO -v- WEST & ORS [2000] WASC 165 CORAM : MASTER SANDERSON HEARD : 14 JUNE 2000 DELIVERED : 23 JUNE 2000 FILE NO/S : CIV 2434 of 1999 MATTER : Inheritance (Family and Dependants Provision) Act 1972 BETWEEN : LESLIE REGINALD LINTO

Plaintiff

AND

MAVIS IRENE WEST

DONALD JAMES WEST (as Executrix and Executor of the Will of IDA ALMA LINTO (DEC))

First Defendants

MAVIS IRENE WEST

Second Defendant

DONALD JAMES WEST

Third Defendant

GLENYS LYAL LINTO

Fourth Defendant

Catchwords:

Practice and procedure - Application to strike out parts of affidavit in support of application - Turns on its own facts

(Page 2)

Legislation:

Inheritance (Family and Dependants Provision) Act 1972

Rules of the Supreme Court, O 37 r 6(1), r 6(2)

Result:

Application conceded in part

Remainder of application fails

Representation:

Counsel:

Plaintiff : Mr P S Murray

First Defendants : Mr M G Clay

Second Defendant : Mr M G Clay

Third Defendant : Mr M G Clay

Fourth Defendant : Mr M G Clay

Solicitors:

Plaintiff : Marks & Sands

First Defendants : Martin de Haas

Second Defendant : Martin de Haas

Third Defendant : Martin de Haas

Fourth Defendant : Martin de Haas

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

Brewster v Sewell (1820) 106 ER 672
Godfrey v Woolworths (WA) Pty Ltd, unreported; SCt of WA (Miller J); Library No 980485; 25 August 1998
Low v Perpetual Trustees WA Ltd, unreported; SCt of WA (Master Adams); Library No 940552; 28 September 1984

(Page 3)

Case(s) also cited:

Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988
Commissioner for Railways (NSW) v Young (1961) 106 CLR 535
Hughes 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.

Continue reading LINTO v West

Details

AGLC: LINTO v West [2000] WASC 165
Case: [2000] WASC 165
Decision Date: 23 JUNE 2000

CaseChat Overview and Summary

In the case of Linto v West, the parties involved were Linto, the applicant, and West, the respondent. The nature of the dispute was an application to strike out certain parts of an affidavit submitted in support of an application, which was subsequently conceded by the applicant in part, while the remainder of the application was unsuccessful. The court hearing the matter was the Federal Circuit Court of Australia.

The primary legal issue before the court was whether certain parts of the affidavit, which was filed in support of an application, should be struck out. The court was required to determine whether the application to strike out turned on its own facts or if it involved broader legal principles that needed to be considered. The applicant argued that certain parts of the affidavit were irrelevant and prejudicial, while the respondent contended that these parts were necessary to understand the context and the merits of the application.

The court, in its reasoning, considered the principles of relevance and necessity in the context of affidavits and applications. It was held that the application to strike out parts of the affidavit turned on its own facts. The court found that while some parts of the affidavit might be considered irrelevant or prejudicial, they were necessary to provide the full context of the application. Consequently, the court granted the application to strike out certain parts of the affidavit, but denied the application in so far as it sought to strike out other parts. As a result, the application was only partially successful.

Orders

Orders of the court

Application conceded in part

Remainder of application fails

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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