MALLON & CO LAWYERS PTY LTD -v- GAM [2012] WASC 376

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 376
Case No:	CIV:1274/2012	Heard:	4 SEPTEMBER 2012
Coram:	MASTER SANDERSON	Delivered:	10/10/12
No of pages:	9	Judgment Part:	1 of 1
Result:	First defendant's application dismissed
Category:	A
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Parties:	MALLON & CO LAWYERS PTY LTD GARY ARLEN GAM HOG'S BREATH CO PTY LTD HOG'S BREACH CAFE (AUSTRALIA) PTY LTD HB INVESTMENTS PTY LTD GINGER LYNN WHITE DONALD RICHARD ALGIE ALFRED BRETT DRYLAND ROSS MURRAY WORTH TUCKER & COWAN (a firm)
Catchwords:	Practice and procedure Leave granted to issue writ and serve notice out of jurisdiction Writ included claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA) Whether leave would be given under O 10 Whether action should be stayed based on forum non conveniens
Legislation:	Nil
Case References:	Borch v Answer Products Inc [2000] QSC 379 Commonwealth Bank of Australia v White [1999] 2 VR 681 Fleming v Marshall [2011] NSWCA 86 Glendalough Holdings Pty Ltd v Summit Chemicals Pty Ltd [2003] WASC 183 Henry v Henry [1996] 185 CLR 571 Jonstan Pty Ltd v Nicholson (2003) 58 NSWLR 223 Kent v Lechmere Financial Corporation [2002] WASC 75 Mallon & Co Lawyers Pty Ltd v Hog's Breath Company Pty Ltd [2011] WASC 236 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Philip Morris Ltd v Ainley & Incorporated Nominal Defendant [1975] VR 345 Raveh v The Official Receiver of the State of Israel [2002] WASCA 27 Singh v Singh [2009] WASCA 53 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Williams v The Society of Lloyd's [1994] 1 VR 274

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MALLON & CO LAWYERS PTY LTD -v- GAM [2012] WASC 376 CORAM : MASTER SANDERSON HEARD : 4 SEPTEMBER 2012 DELIVERED : 10 OCTOBER 2012 FILE NO/S : CIV 1274 of 2012 BETWEEN : MALLON & CO LAWYERS PTY LTD

Plaintiff

AND

GARY ARLEN GAM

First Defendant

HOG'S BREATH CO PTY LTD

HOG'S BREACH CAFE (AUSTRALIA) PTY LTD

HB INVESTMENTS PTY LTD

GINGER LYNN WHITE

DONALD RICHARD ALGIE

ALFRED BRETT DRYLAND

ROSS MURRAY WORTH

Second Defendants

TUCKER & COWAN (a firm)

Third Defendant

Catchwords:

Practice and procedure - Leave granted to issue writ and serve notice out of jurisdiction - Writ included claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA) - Whether leave would be given under O 10 - Whether action should be stayed based on forum non conveniens

(Page 2)

Legislation:

Nil

Result:

First defendant's application dismissed

Category: A

Representation:

Counsel:

Plaintiff : Mr J D MacLaurin

First Defendant : Mr T M Retallack

Second Defendants : No appearance

Third Defendant : No appearance

Solicitors:

Plaintiff : Griffith Hack Lawyers Pty Ltd

First Defendant : Culshaw Miller Lawyers

Second Defendants : No appearance

Third Defendant : No appearance

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

Borch…

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.

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Details

Case: [2012] WASC 376
Decision Date: 10 OCTOBER 2012

CaseChat Overview and Summary

The court was asked to decide whether to grant leave for Mallon & Co Lawyers Pty Ltd to issue a writ and serve notice out of jurisdiction, with the writ containing claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 2005 (WA). The application was made by the first defendant in the proceedings. The legal issues before the court included whether leave should be granted under Order 10 and whether the action should be stayed on the basis of forum non conveniens. The primary consideration for granting leave under Order 10 was whether the court had jurisdiction to hear the case, considering the claims made under federal and state legislation. Additionally, the court had to weigh the convenience of the parties and the witnesses, and the interests of justice in determining whether to stay the proceedings on the basis of forum non conveniens.

The court found that there were compelling reasons to grant leave to serve the writ out of jurisdiction. It noted the significant connections between the parties and the subject matter of the dispute to the forum state. The court also determined that the interests of justice did not favour staying the proceedings on the basis of forum non conveniens, given the strong ties of the case to the jurisdiction and the convenience of the parties and witnesses. The court concluded that the case should proceed in the jurisdiction where the writ was to be served, and thus dismissed the application by the first defendant to stay the proceedings.

Orders

Orders of the court

First defendant's application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.