JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MADDOCK -v- CRENDON MACHINERY [2003] WADC 235
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: 1 OCTOBER 2003
DELIVERED : 3 NOVEMBER 2003
FILE NO/S: CIV 477 of 2003
BETWEEN: RAYMOND GRAEME MADDOCK
Plaintiff
AND
CRENDON MACHINERY
Defendant
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia O 12, r 7 O 20, r 19(1) and O 16, r 1 - Application to strike out statement of claim - Application for summary judgment in the absence of appearance.
Legislation:
Workers' Compensations and Rehabilitation Act 1981
Result:
Dismissed
Representation:
Counsel:
Plaintiff: Mr P L Haynes
Defendant: Mr J S MacDonald
Solicitors:
Plaintiff: Paul O'Halloran & Associates
Defendant: McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission (2002) 192 ALR 561
Case(s) also cited:
Castro v Murray (1875) LR 10 Exch 213
Dalgety Australia Ltd & Anor v De Vahl Rubin & Ors; unreported; SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Ltd [1949] 1 All ER 219
Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Haasy v Town & Country Demolition Pty Ltd [2002] WADC 81
Howden v "Truth" and "Sportsman" Ltd (1937) 58 CLR 416
Kimberley Downs Pty Ltd & Ors v Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Lawrance v Norreys [1890] 15 App Cas 210
Pancontinental Mining Ltd v Posgold Investments Pty Ltd and Others (1994) 121 ALR 405; 13 ACSR 117
Re Monger; Ex parte Woodford [1999] WASC 273
Republic of Peru v Peruvian Guano Company [1887] 36 Ch D 489
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152
DEPUTY REGISTRAR HARMAN: The defendant has brought an application seeking an order that the statement of claim be struck out on the grounds that it discloses no reasonable cause of action, that it is scandalous, frivolous or vexatious or otherwise an abuse of process. Alternatively it seeks judgment.
In bringing the application the defendant purports to utilise the mechanism provided by O 12, r 7. It provides:
"A defendant to an action may at any time before entering an appearance therein, serve notice of motion to set aside the writ or service of the writ, or notice of the writ on him or discharging any order giving leave to serve the writ or notice on him out of the jurisdiction."
Insofar as the defendant seeks judgment the application does not fall within the scope of the rule.
There is a further procedural impediment to the defendant’s success. Order 16, r 1(1) provides:
"Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the…
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- AGLC
- Maddock v CRENDON Machinery [2003] WADC 235
- Case
- [2003] WADC 235
- Decision Date
CaseChat Overview and Summary
The court examined the principles of statutory interpretation and the common law rights, privileges, and immunities in the context of the Rules of the Supreme Court of Western Australia. The court referred to the High Court decision in Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission (2002) 192 ALR 561, where the High Court held that statutory provisions should not be construed as abrogating important common law rights unless there are clear words or a necessary implication to that effect. The court also considered the prevailing view in Western Australia that the qualification "necessary" should be taken into account when interpreting statutory provisions.
After considering the arguments and relevant legal principles, the court found that the plaintiff had not engaged in any abuse of process by filing the statement of claim. The court also determined that the legislature intended for an action to be commenced in the absence of a determination by the Directorate. Therefore, the court concluded that the application to strike out the statement of claim and the application for summary judgment were inappropriately brought. The court further held that the substantive merits of the application demonstrated that it ought properly fail.
The court did not make any final orders in the case, as it determined that the application was inappropriately brought and ought to fail on its substantive merits. The court's decision emphasised the importance of considering statutory provisions in the context of common law rights and the need for clear words or a necessary implication to abrogate such rights.
Orders
Orders of the court
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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
In Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission (2002) 192 ALR 561 at 565 the High Court recently recognised the "well settled" principle "that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect." In recent times it seems to have been the prevailing view in this jurisdiction that consideration of at least the qualification "necessary" is properly overlooked. In my opinion in issuing the writ the plaintiff did not engage in any abuse of process. The plaintiff has taken no step beyond that point. Clearly the legislature intended that an action could be commenced in the absence of a determination by the Directorate. In my opinion the application was inappropriately brought. Consideration of its substantive merits demonstrates that it ought properly fail.