Mills v Lippiatt - [2019] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   MILLS -v- LIPPIATT [2019] WADC 99
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   24 APRIL 2019
DELIVERED          :   3 JULY 2019
PUBLISHED           :   23 JULY 2019
FILE NO/S:   CIV 4583 of 2016
BETWEEN:   NICOLE LOUISE MILLS
Plaintiff

AND

DANIEL PETER LIPPIATT
First Defendant

DOLPHIN DIVE CENTRE FREMANTLE PTY LTD
Second Defendant

PEPPER GROUP LTD
Third Defendant

Catchwords:

Practice - Western Australia - Practice under the District Court Rules 2005 - Application to countermand entry for trial - Turns on its facts - Application for dismissal for want of prosecution

Legislation:

District Court Rules 2005

Result:

Applications dismissed

Representation:

Counsel:

Plaintiff	:	Mr G P Bourhill
First Defendant	:	Mr B G Grubb
Second Defendant	:	Mr B G Grubb
Third Defendant	:	Ms B A Mangan

Solicitors:

Plaintiff	:	Bradley Bayly Legal
First Defendant	:	Hager Grubb & Partners Lawyers
Second Defendant	:	Hager Grubb & Partners Lawyers
Third Defendant	:	K & L Gates

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

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27

DEPUTY REGISTRAR HARMAN:

By their application the first and second defendants seek to countermand the entry of the action for trial and to dismiss the action against them. Each part of the application is opposed by both the plaintiff and the third defendant. The applicants carry the onus of persuasion that in all of the circumstances it is appropriate to so determine.
The plaintiff's claims against the defendants are brought under the Fatal Accidents Act1959. The plaintiff's husband had been a passenger on a vessel travelling between Rottnest Island and Fremantle when he fell overboard and drowned.
The claim against the first defendant is as the skipper of the vessel; against the second defendant as the chartering party; and against the third defendant, as the host of a function of which the voyage was a part.
The third defendant was added to the action on 27 September 2017. I take it to be the case that prior to entering its appearance on 6 March 2018 the third defendant had been served with the amended writ. The amended writ bears the amended statement of claim.
On 18 July 2018 the action was placed on the inactive cases list. By that date the third defendant had not filed a defence.
On 19 December 2018 I dealt with the plaintiff's application to remove the action from the inactive cases list. The application was not opposed by the third defendant. As against the third defendant the action was removed from the inactive cases list. Because the plaintiff did not discharge the onus in the case that she put in the application against the first and second defendants, as against the first and second defendants the application was dismissed. I understand that the determination has been the subject of some debate however it cannot be said that it does not reflect the lack…

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: [2019] WADC 99
Decision Date: 23 JULY 2019

CaseChat Overview and Summary

The case of Mills v Lippiatt involved the applicant, Mills, seeking to countermand an entry of appearance to defend in the District Court of Western Australia. The respondent, Lippiatt, sought to have the application dismissed for want of prosecution, arguing that the applicant had failed to take any steps towards prosecuting the claim over a significant period of time. The central issue before the court was whether the applicant had acted with due diligence in prosecuting the claim, and whether the delay in bringing the application was justified.

The court considered the relevant principles and authorities governing applications for dismissal for want of prosecution. The court noted that such applications turn on their own facts and that the court must consider the nature of the proceedings, the length of the delay, the reasons for the delay, and the prejudice caused to the respondent. The court also noted that while the applicant had a right to prosecute their claim, they also had an obligation to do so with reasonable diligence. The court found that the applicant had not acted with due diligence in prosecuting the claim, as they had taken no steps towards bringing the matter to trial for a significant period of time. The court also found that the delay in bringing the application had caused prejudice to the respondent, who had been unable to prepare for trial during this time.

In light of these findings, the court dismissed the application for countermand and for leave to amend the pleadings. The court held that the applicant had not acted with due diligence in prosecuting the claim and that the delay in bringing the application had caused significant prejudice to the respondent. The court also noted that the applicant had not provided any justification for the delay, and that the delay was inordinately long. The court held that the application should be dismissed for want of prosecution, and that the respondent was entitled to an order for costs on an indemnity basis.

Orders