MARIOTTI -v- WANNEROO NORTH PTY LTD [2008] WASC 109

Link to Appeal :

[2008] WASCA 243

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 109
Published:	04/06/2008
Case No:	CIV:1905/2007	Heard:	21 APRIL 2008
Coram:	JOHNSON J	Delivered:	29/04/08
No of pages:	49	Judgment Part:	1 of 1
Result:	Defendant's application granted Action CIV 1905 of 2007 dismissed Plaintiff's applications dismissed
Category:	B
PDF Version

Parties:	GIOVANNI MARIOTTI WANNEROO NORTH PTY LTD (ACN 008 842 966)
Catchwords:	Application to dismiss action Unrepresented litigant Failure to attend pre-trial directions hearings Failure to comply with pre-trial directions Failure to prepare for trial Contumacious conduct Abuse of process
Legislation:	Nil
Case References:	Commonwealth Bank of Australia Ltd v Amadio (1982) 151 CLR 447 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Freeman v Rabinov [1981] VR 539 Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] 30 WAR 398 J&J Products (a firm) v Ken Gray & Co (a firm), (Unreported; WASCA; Library No 960219; 24 April 1996) Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Treiguts v Tweedley [1959] VR 544

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MARIOTTI -v- WANNEROO NORTH PTY LTD [2008] WASC 109 CORAM : JOHNSON J HEARD : 21 APRIL 2008 DELIVERED : 29 APRIL 2008 PUBLISHED : 4 JUNE 2008 FILE NO/S : CIV 1905 of 2007 BETWEEN : GIOVANNI MARIOTTI

Plaintiff

AND

WANNEROO NORTH PTY LTD (ACN 008 842 966)

Defendant

Catchwords:

Application to dismiss action - Unrepresented litigant - Failure to attend pre-trial directions hearings - Failure to comply with pre-trial directions - Failure to prepare for trial - Contumacious conduct - Abuse of process

Legislation:

Nil

Result:

Defendant's application granted

Action CIV 1905 of 2007 dismissed

(Page 2)

Plaintiff's applications dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr N D C Dillon

Defendant : Mr G R Donaldson SC

Solicitors:

Plaintiff : Vogt Graham Lawyers

Defendant : Fairweather & Lemonis

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

Commonwealth Bank of Australia Ltd v Amadio (1982) 151 CLR 447
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Freeman v Rabinov [1981] VR 539
Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] 30 WAR 398
J&J Products (a firm) v Ken Gray & Co (a firm), (Unreported; WASCA; Library No 960219; 24 April 1996)
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Treiguts v Tweedley [1959] VR 544

(Page 3)

1 JOHNSON J: There are two applications before the court. The first in time is the defendant's chamber summons for dismissal of the action (the defendant's application). The other application is the plaintiff's chamber summons to adjourn the defendant's application for dismissal and to adjourn the trial dates (the plaintiff's application).

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: [2008] WASC 109
Decision Date: 29 APRIL 2008

CaseChat Overview and Summary

The matter before the court involved an application by Wanneroo North Pty Ltd to have Mariotti's action dismissed. The plaintiff, Mariotti, had commenced legal proceedings against the defendant, Wanneroo North Pty Ltd, and the defendant sought dismissal on the grounds of the plaintiff's failure to attend pre-trial directions hearings, non-compliance with pre-trial directions, failure to prepare for trial, and other procedural missteps. The defendant's application was heard by the court, which had to determine whether the plaintiff's conduct justified the dismissal of the action.

The court considered whether the plaintiff's behaviour constituted an abuse of the court's process, given the plaintiff's failure to comply with procedural obligations and to prepare for the trial. The court also assessed whether the plaintiff's contumacious conduct warranted dismissal of the action. In making its decision, the court weighed the principle that all litigants are entitled to a fair hearing against the need to protect the court's process from abuse.

After considering the plaintiff's conduct, the court concluded that the plaintiff had indeed abused the court's process and that dismissal of the action was appropriate. The court found that the plaintiff's failures to comply with procedural requirements and to prepare for trial demonstrated a disregard for the court's process and the defendant's rights. The court found that the plaintiff's conduct warranted dismissal of the action. Accordingly, the defendant's application to dismiss the action was granted, and the plaintiff's applications were dismissed. The court dismissed the action, bringing the litigation to an end.

Orders

Orders of the court

Defendant's application granted

Action CIV 1905 of 2007 dismissed

Plaintiff's applications 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

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