MERIDIAN OIL NL -v- SMYTH & ORS [2007] WASC 179

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 179
Case No:	CIV:1208/1995	Heard:	1 AUGUST 2007
Coram:	MASTER SANDERSON	Delivered:	3/08/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	MERIDIAN OIL NL PETER MARK SMYTH DAVID ALEC ANDREW FLEMING CHRISTOPHER PAUL McDONALD MAIN MICHAEL JOHN FULLER CECIL DENNISTON BURNEY LINDSAY GERALD DAVEY CAMERON ROSS PHILIP GLOSSOP RICHARD WEBB
Catchwords:	Practice and procedure Application to strike out for want of prosecution Turns on own facts
Legislation:	Nil
Case References:	Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398 Noye v Thoy [2007] WASC 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MERIDIAN OIL NL -v- SMYTH & ORS [2007] WASC 179 CORAM : MASTER SANDERSON HEARD : 1 AUGUST 2007 DELIVERED : 3 AUGUST 2007 FILE NO/S : CIV 1208 of 1995 BETWEEN : MERIDIAN OIL NL

Plaintiff

AND

PETER MARK SMYTH

First Defendant

DAVID ALEC ANDREW FLEMING

Second Defendant

CHRISTOPHER PAUL McDONALD MAIN

Third Defendant

MICHAEL JOHN FULLER

Fourth Defendant

CECIL DENNISTON BURNEY

Fifth Defendant

LINDSAY GERALD DAVEY CAMERON

Sixth Defendant

ROSS PHILIP GLOSSOP

Seventh Defendant

(Page 2)

RICHARD WEBB

Eighth Defendant

Catchwords:

Practice and procedure - Application to strike out for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr C G Colvin SC & Mr M C Hotchkin

First Defendant : Mr J C Vaughan

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Eighth Defendant : No appearance

(Page 3)

Solicitors:

Plaintiff : Hotchkin Hanly

First Defendant : Freehills

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Eighth Defendant : No appearance

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

Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398
Noye v Thoy [2007] WASC 6

(Page 4)

1 MASTER SANDERSON: This is the first defendant's application seeking to have the action against him dismissed for want of prosecution. In support of the application, the first defendant produced a document entitled the amended chronology. A copy of that document is attached to these reasons. It sets out in summary form the steps that have been taken since the issue of the writ in March 1995. At present, neither the plaintiff nor the first defendant have provided the other with discovery. There is no indication from the plaintiff when its list of discovered documents will be available.

2 At the commencement of the hearing, I asked Senior Counsel for the plaintiff if he could give an estimate as to when the matter might be ready for trial and how long any trial might take. Counsel was not in…

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: [2007] WASC 179
Decision Date: 3 AUGUST 2007

CaseChat Overview and Summary

Meridian Oil NL was the plaintiff and Smyth was the defendant in a case before the Supreme Court of New South Wales. The plaintiff sought damages for breach of contract and for misleading and deceptive conduct. The defendant applied to strike out the plaintiff's statement of claim for want of prosecution. The court had to decide whether the plaintiff's delay in bringing the proceeding to trial was unreasonable and whether that delay had prejudiced the defendant to the extent that it was just to strike out the proceeding.

The court noted that there were no specific rules or precedents that could be applied to determine whether the delay was unreasonable. The application turned on its own facts and required a consideration of all the circumstances. The court found that the plaintiff had not acted with sufficient expedition and that the delay had caused some prejudice to the defendant. However, the court also found that the plaintiff had a good arguable case and that the prejudice to the defendant was not so serious as to warrant striking out the proceeding. The court dismissed the application.

Orders

Orders of the court

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.