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Low v Romaro

Low v Romaro

Case [2023] WASCA 155 26 October 2023

Jurisdiction

Appeal

Limitation Periods

Discovery & Disclosure

Issue Estoppel

Civil Litigation & Procedure

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LOW -v- ROMARO [2023] WASCA 155
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   26 OCTOBER 2023
DELIVERED          :   26 OCTOBER 2023
PUBLISHED           :   26 OCTOBER 2023
FILE NO/S:   CACV 100 of 2023
BETWEEN:   RYAN LOW
First Appellant
AMP FINANCIAL PLANNING PTY LIMITED
Second Appellant
CYBERSIDE INVESTMENTS PTY LTD
Third Appellant
AND
TERRY STEPHEN ROMARO
First Respondent
PIKACHU PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: ROMARO -v- LOW [2023] WASC 209
File Number            :   CIV 1632 of 2014, CIV 2384 of 2014

Catchwords:

Appeal - Practice and Procedure - Leave to appeal - Where appeal is against orders permitting amendment of the indorsements to writs of summons in the primary proceedings - Whether there is any substantive injustice to the appellant if the challenged orders are allowed to stand - Appellate restraint in granting leave to appeal from interlocutory orders dealing with matter of practice and procedure

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	R O'Brien
Second Appellant	:	R O'Brien
Third Appellant	:	R O'Brien
First Respondent	:	T M Clavey and W S Haslam
Second Respondent	:	T M Clavey and W S Haslam

Solicitors:

First Appellant	:	DLA Piper Australia - Perth
Second Appellant	:	DLA Piper Australia - Perth
Third Appellant	:	DLA Piper Australia - Perth
First Respondent	:	Blackwall Legal LLP
Second Respondent	:	Blackwall Legal LLP

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Arvind Pty Ltd v Lamers [2020] WASCA 47
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Re the Will of FB Gilbert (Dec) (1946) 46 SR (NSW) 318
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Waller v Waller [2009] WASCA 61
Wilson v Metaxas [1989] WAR 285

REASONS OF THE COURT:

At the hearing of the appellants' application for leave to appeal, we ordered that leave to appeal be refused and that the appeal be dismissed. These are our reasons for making those orders.

Uncontentious facts

The consolidated primary proceedings were commenced by writs of summons filed on 8 May 2014 and 2 October 2014.
It appears from the pleadings that many of the basic facts are not in dispute. The following appears from the Consolidated Statement of Claim dated 15 January 2015 (SoC), to which the Amended Defence dated 11 February 2020 (Defence) responds.
The first appellant, Mr Low, was employed by the third appellant (Cyberside) and was the authorised representative of the second appellant (AMP). Mr Low provided insurance broking and financial planning services to the first…

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 Low v Romaro

Details

AGLC: Low v Romaro [2023] WASCA 155
Case: [2023] WASCA 155
Decision Date

CaseChat Overview and Summary

The appeal in Low v Romaro was heard by Mitchell Javauge JA in the Supreme Court of Western Australia. The appellants, Ryan Low, AMP Financial Planning Pty Limited, and Cyberside Investments Pty Ltd, sought leave to appeal against orders made by the master permitting amendments to the writs of summons in the primary proceedings. The respondents, Terry Stephen Romaro and Pikachu Pty Ltd, opposed the appeal. The central legal issues were whether the amendments introduced new causes of action that were statute-barred and whether, if the amendments were permissible, it was in the interests of justice to allow them given the delay and potential prejudice to the appellants.

The Court of Appeal held that leave to appeal should be refused because the appellants had not demonstrated that a substantial injustice would be done if the master's decision remained undisturbed. The Court noted that if the appellants' contention that the claim based on events in 2007 was statute-barred was correct, they would succeed at trial. The burden of defending the claim at trial did not constitute substantive prejudice for the purposes of the general principles governing the grant of leave to appeal from interlocutory decisions. The Court also found that the alleged prejudice to the appellants in defending a claim based on events that occurred long ago did not amount to substantive prejudice. The circumstances in which Mr Romaro obtained the ING policies were always a necessary aspect of the proceedings, and the discussions between Mr Low and Mr Romaro prior to the ING policies being taken out were relevant background to those circumstances.

The Court concluded that it was in the interests of justice to refuse leave to appeal and dismiss the appeal. The appeal was dismissed, and costs followed the event.

Orders