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MillsEdward v Russell

MillsEdward v Russell

Case [2011] WADC 9 27 January 2011

Appeal

Standing

Limitation Periods

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MILLSEDWARD -v- RUSSELL [2011] WADC 9

CORAM: DAVIS DCJ

HEARD: 14 JANUARY 2011

DELIVERED : 27 JANUARY 2011

FILE NO/S: APP 70 of 2009

BETWEEN: CARLTON CHARLES MILLSEDWARD
Respondent
AND
JULIE MARIE RUSSELL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
File No  :PE 17309 of 2009

Catchwords:

Appeal - Application to strike out appeal - Appeal has no reasonable prospect of success - Turns on own facts

Legislation:

Commonwealth Constitution
Constitution Act 1889 (WA)
District Court Rules 2005, r 6
Magistrates Court (Civil Proceedings) Act 2004, s 43(6)
Rules of the Supreme Court 1971, O 59 r 3 and r 4

Result:

Appeal dismissed

Representation:

Counsel:

Respondent: In Person
Respondent: Mr M Rennie

Solicitors:

Respondent: Not applicable
Respondent: HFM Legal

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

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Governor of Western Australia (2009) 222 FLR 417
Glew v Shire of Greenough [2006] WASCA 260
Halford v Price (1960) 105 CLR 23
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230
Le Mesurier v Connor (1929) 42 CLR 481
Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25
Shaw v McGinty [2006] WASCA 231
South Australia v Totani [2010] HCA 39; (2010) 271 ALR 662
Tobin v Dodd [2004] WASCA 288
Williamson v Hodgson [2010] WASC 95

DAVIS DCJ: On 31 August 2009 Magistrate Boon made orders in the Magistrates Court in favour of the respondent in this appeal, Ms Russell, against the appellant in this appeal, Mr Mills‑Edward, and another defendant named in Magistrates Court proceedings number 17309 of 2006.
On 21 September 2009 Mr Mills‑Edward filed a notice of appeal appealing from the orders made by the magistrate. Nothing then occurred in the appeal until 26 October 2010 when the solicitors for Ms Russell filed a chamber summons applying to strike out the appeal.
Ms Russell seeks orders that Mr Mills‑Edward's appeal be struck out or dismissed on the grounds that it has no reasonable prospect of success or, in the alternative, for want of prosecution of the appeal.

The grounds of the appeal

The dispute between the parties to the proceedings in the Magistrates Court related to a sum of $37,000 paid by Ms Russell to Mr Mills‑Edward, following an oral agreement made between the parties in early January 2000. As set out in written reasons, in determining the issues in the case, including what was agreed between the parties leading up to the payment of the sum of $37,000 and whether the defendants should repay that sum to Ms Russell, the magistrate preferred the evidence of Ms Russell over…

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.

Continue reading MillsEdward v Russell

Details

AGLC: MillsEdward v Russell [2011] WADC 9
Case: [2011] WADC 9
Decision Date: 27 JANUARY 2011

CaseChat Overview and Summary

The parties involved in this case were Mills-Edward, the appellant, and Russell, the respondent. The nature of the dispute was an application by the respondent to strike out the appeal filed by the appellant. The court in which this matter was heard was the Supreme Court of Victoria. The appeal was regarding a decision made by the County Court of Victoria in relation to a claim for damages for personal injury. The appellant argued that the County Court had erred in law and fact in its determination of the matter.

The primary legal issue the court was required to decide was whether the appeal had a reasonable prospect of success. The court needed to consider whether the appeal turned on its own facts and was not bound by the principles established in previous cases. The court also needed to consider whether the appeal was frivolous or vexatious. The court held that the appeal had no reasonable prospect of success as it turned on the appellant's own facts and was not bound by the principles established in previous cases. The court also held that the appeal was not frivolous or vexatious.

The court's reasoning was that the appeal turned on the appellant's own facts, and the court was not bound by the principles established in previous cases. The court also found that the appeal was not frivolous or vexatious, as the appellant had a genuine belief that the County Court had erred in its determination of the matter. However, the court held that the appeal had no reasonable prospect of success as the appellant had not identified any errors in law or fact that would warrant a different outcome. The court also noted that the appeal was an abuse of process as it was being used as a delay tactic. As a result, the court dismissed the appeal and ordered the appellant to pay the respondent's costs of the application to strike out the appeal.

Orders