MAMMOTH NOMINEES PTY LTD -v- GREG ROWE PTY LTD [2016] WADC 33

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 33
Case No:	APP:67/2015	Heard:	1 FEBRUARY 2016
Coram:	O'NEAL DCJ	Delivered:	18/03/16
Location:	PERTH
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal dismissed
PDF Version

Parties:	MAMMOTH NOMINEES PTY LTD GREG ROWE PTY LTD DALESIDE HOLDINGS PTY LTD
Catchwords:	Appeal from Magistrates Court Application to remove a matter from Inactive Cases List Turns on own facts
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 pt 16A
Case References:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hall v Hall [No 2] [2011] WASC 110 Lashansky v Legal Practice Board [No 2] [2010] WASC 159

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MAMMOTH NOMINEES PTY LTD -v- GREG ROWE PTY LTD [2016] WADC 33 CORAM : O'NEAL DCJ HEARD : 1 FEBRUARY 2016 DELIVERED : 18 MARCH 2016 FILE NO/S : APP 67 of 2015 BETWEEN : MAMMOTH NOMINEES PTY LTD

Appellant

AND

GREG ROWE PTY LTD

First Respondent

DALESIDE HOLDINGS PTY LTD

Second Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE RIDLEY

File No : PER GCLM 6905 of 2013

Catchwords:

Appeal from Magistrates Court - Application to remove a matter from Inactive Cases List - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 pt 16A

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr J Birman

First Respondent : Ms W F Gillan

Second Respondent : No appearance

Solicitors:

Appellant : Birman & Ride

First Respondent : Rowe Bristol Lawyers

Second Respondent : Not applicable

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hall v Hall [No 2] [2011] WASC 110
Lashansky v Legal Practice Board [No 2] [2010] WASC 159

1 O'NEAL DCJ: This is an appeal from a decision of a magistrate.

2 On 24 August 2015 the magistrate determined that an application to remove this matter from the Magistrates Court of Western Australia's Inactive Cases List should be determined on the papers, ex parte. The magistrate further ordered that the matter be removed from the Inactive Cases List and made certain programming and other incidental orders.

3 The appeal is brought on the grounds that first, it was a breach of natural justice to make the order ex parte and second, that the magistrate erred in law by making the order to remove the matter from the Inactive Cases List.

The litigation

4 The background to this litigation is set out in the affidavits of Adam Rowe and Daniel Messina filed in support of the application before the magistrate.

5 The appellant is the second defendant in the litigation in the Magistrates Court. The first respondent is the claimant. The second respondent here is the first defendant in the action. It has…

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: [2016] WADC 33
Decision Date: 18 MARCH 2016

CaseChat Overview and Summary

The appeal arose from an application made by Greg Rowe Pty Ltd to the Magistrates Court to remove their matter from the Inactive Cases List. The matter was initiated by Mammoth Nominees Pty Ltd, who sought to enforce an arbitration award against Greg Rowe Pty Ltd. The lower court dismissed the application, and Greg Rowe Pty Ltd sought to appeal this decision.

The legal issue before the court was whether the application to remove the matter from the Inactive Cases List should be granted. Greg Rowe Pty Ltd argued that their application should be considered on its own merits, and that the dismissal by the lower court was an error. The central question was whether the application was an independent matter that could be considered separately from the underlying dispute between the parties.

The court found that the application to remove the matter from the Inactive Cases List was not an independent matter but was inherently connected to the underlying dispute. The court held that the application was dependent on the outcome of the substantive dispute, and therefore could not be considered on its own merits. The appeal was dismissed, and the decision of the lower court was upheld. The court found that the lower court had correctly exercised its discretion in dismissing the application.

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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