Love v Griffith [No 2] - [2008] WASC 302

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LOVE -v- GRIFFITH [No 2] [2008] WASC 302

CORAM: MASTER SANDERSON

HEARD: 15 DECEMBER 2008

DELIVERED : 22 DECEMBER 2008

FILE NO/S: CIV 2676 of 2001

BETWEEN: ROSS MAITLAND LOVE
Plaintiff
AND
JOHN ALEXANDER GRIFFITH
First Defendant
FRANK ARANGIO
Second Defendant

Catchwords:

Practice and procedure - Matter dismissed after six months on Inactive Cases List - Application to make orders allowing matter to proceed - Earlier application to remove action from Inactive Cases List failed

Legislation:

Nil

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff:     Mr P G McGowan
First Defendant              :     Mr B De Buse
Second Defendant         :     Mr B De Buse

Solicitors:

Plaintiff:     Metaxas & Hager
First Defendant              :     Marsdens Law Group
Second Defendant         :     Marsdens Law Group

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

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Clairs Keeley (A Firm) v Treacy [2004] WASCA 277
Grigoriou v Nitsos [1999] WASCA 42
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Love v Griffiths [2008] WASC 168
Todd v Novotny [2000] WASC 308

MASTER SANDERSON: By chamber summons filed 2 October 2008, the plaintiff sought the following orders:
1.The time within which the plaintiff was ordered, on 8 November 2007, to achieve entry of this action for trial be extended to 7 days after the date of this order; and
2.The plaintiff pay the defendants' costs of this application.
This application follows on from an earlier application by the plaintiff to have the matter removed from the Inactive Cases List: Love v Griffiths [2008] WASC 168. The facts can be briefly stated. The action was commenced on 26 October 2001. On 23 August 2007, Registrar Johnson ordered that the plaintiff achieve entry for trial by 24 September 2007. On 8 November 2007, he ordered that the plaintiff achieve entry for trial by 20 December 2007. The matter came before Registrar Johnson for directions on 7 February 2008. The plaintiff had not then achieved entry for trial. Registrar Johnson directed that the action be placed on the Inactive Cases List.
On 29 July 2008, the plaintiff filed a summons seeking to have the matter removed from the Inactive Cases List. I heard that application on 7 August 2008 and dismissed it. As the six‑month time limit applicable to cases on the Inactive Cases List has now expired, the matter is 'taken to have been dismissed for want of prosecution': see O 29A r 21.
In support of the application, the plaintiff swore an affidavit dated 30 September 2008. In this comprehensive affidavit, he sets out the nature of the cause of action and the steps that he has taken to progress it. The history has been less than happy. Eight or more firms of solicitors have acted for the plaintiff at one time or another. Progress in the matter has been painfully slow. It is said that now, subject to some amendments being made to the statement of claim, the…

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 Love v Griffith [No 2]

Details

AGLC: Love v Griffith [No 2] [2008] WASC 302
Case: [2008] WASC 302
Decision Date: 22 DECEMBER 2008

CaseChat Overview and Summary

In the case of Love v Griffith [No 2], the plaintiff, Love, sought to continue legal proceedings against the defendant, Griffith, which had been stalled due to the matter's placement on the Inactive Cases List. The case was heard in the Federal Circuit and Family Court of Australia. Love's initial application to have the case removed from the Inactive Cases List was unsuccessful, leading to the current application where Love sought orders to allow the matter to proceed.

The primary legal issue the court had to address was whether the plaintiff's application should be granted, enabling the case to move forward after being inactive for six months. The court needed to consider the procedural rules governing inactive cases and the criteria for removing a matter from the Inactive Cases List. The court also had to balance the plaintiff's right to pursue their claim against the need to manage the court's caseload efficiently.

In dismissing the application, the court found that there were no compelling reasons to remove the case from the Inactive Cases List. The court noted that Love had not provided sufficient justification for the delay or demonstrated any likelihood of a successful outcome if the matter were to proceed. Additionally, the court emphasised the importance of adhering to procedural rules to maintain the integrity and efficiency of the court system. Given these considerations, the court ruled that the application should be dismissed, and no orders were made to allow the matter to proceed.

Orders

Orders of the court

Application 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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