MACARTNEY -v- MACMAHON CONSTRUCTION PTY LTD [2008] WADC 24

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 24
Case No:	CIV:2418/1994	Heard:	23 JANUARY 2008
Coram:	SCHOOMBEE DCJ	Delivered:	20/02/08
Location:	PERTH
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	DAVID ROBIN MACARTNEY MACMAHON CONSTRUCTION PTY LTD
Catchwords:	Practice and Procedure Dismissal for want of prosecution Delay caused by plaintiff defending criminal charges Acquiescence by defendant Whether prejudice to defendant Whether fair trial possible
Legislation:	District Court Rules 2005 Evidence Act 1906
Case References:	Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 Birkett v James [1978] AC 297 Dzienciol & Ors v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998 Hancock Family Memorial Foundation Limited v Fieldhouse (2005) 30 WAR 398 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Holt v Wynter (2000) 49 NSWLR 128 Hughes v Gales (1995) 14 WAR 434 Jakovljevic v L & B Doslov [2000] WASC 131 Lewandowski v Lovell (1994) 11 WAR 124 Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294 Roddan v Gwilliam [2005] WASCA 209 Stollznow v Calvert [1980] 2 NSWLR 749 Ulowski v Miller [1968] SASR 277 Westcoast Clothing Company Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA; Library 940482; 7 September 1994

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : MACARTNEY -v- MACMAHON CONSTRUCTION PTY LTD [2008] WADC 24 CORAM : SCHOOMBEE DCJ HEARD : 23 JANUARY 2008 DELIVERED : 21 FEBRUARY 2008 FILE NO/S : CIV 2418 of 1994 BETWEEN : DAVID ROBIN MACARTNEY

Plaintiff

AND

MACMAHON CONSTRUCTION PTY LTD

Defendant

Catchwords:

Practice and Procedure - Dismissal for want of prosecution - Delay caused by plaintiff defending criminal charges - Acquiescence by defendant - Whether prejudice to defendant - Whether fair trial possible

Legislation:

District Court Rules 2005

Evidence Act 1906

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : In person

Defendant : Mr D R Clyne

Solicitors:

Plaintiff : Not applicable

Defendant : Kott Gunning

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

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27
Birkett v James [1978] AC 297
Dzienciol & Ors v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998
Hancock Family Memorial Foundation Limited v Fieldhouse (2005) 30 WAR 398
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Holt v Wynter (2000) 49 NSWLR 128
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v L & B Doslov [2000] WASC 131
Lewandowski v Lovell (1994) 11 WAR 124
Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273
Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294
Roddan v Gwilliam [2005] WASCA 209
Stollznow v Calvert [1980] 2 NSWLR 749
Ulowski v Miller [1968] SASR 277
Westcoast Clothing Company Pty Ltd v Sail…

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 Macartney v Macmahon Construction Pty Ltd

Details

AGLC: Macartney v Macmahon Construction Pty Ltd [2008] WADC 24
Case: [2008] WADC 24
Decision Date: 21 FEBRUARY 2008

CaseChat Overview and Summary

The matter before the court involved an appeal by Macartney against a decision to dismiss his case for want of prosecution. The dispute arose from an incident where Macartney was injured at work, and he sued his employer, Macmahon Construction Pty Ltd. The primary judge dismissed Macartney’s claim due to significant delays caused by him defending related criminal charges. Macartney appealed, arguing that the dismissal was unjust given that the defendant had acquiesced to the delays and that there was no prejudice to them. The court was tasked with determining whether the dismissal was appropriate under the circumstances.

The central legal issues revolved around the principles governing dismissal for want of prosecution, specifically in cases where the plaintiff's delay is due to defending related criminal charges and whether the defendant's acquiescence to the delay negates the need for dismissal. The court had to consider whether the delay caused prejudice to the defendant, and whether it was possible to conduct a fair trial under the circumstances. The court also examined whether the delay was unreasonably long and whether it was possible to compensate for any prejudice caused by the delay.

The court found that the delay in this case was indeed unreasonable and had caused some prejudice to the defendant, as the delay impaired their ability to conduct an effective defence. Despite the plaintiff's argument that the defendant had acquiesced to the delay, the court determined that this did not absolve the plaintiff of the consequences of the delay. The court held that the delay was unreasonable and that the dismissal was justified. The appeal was dismissed, and the decision to dismiss the case for want of prosecution was upheld.

Orders

Orders of the court

Appeal 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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