MOKDAD v FMA Engineering Australia Pty Ltd

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MOKDAD -v- FMA ENGINEERING AUSTRALIA PTY LTD [2011] WADC 180
Last Update:  03/11/2011
MOKDAD -v- FMA ENGINEERING AUSTRALIA PTY LTD [2011] WADC 180
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2011] WADC 180
Case No: APP:55/2011   Heard: 21 OCTOBER 2011
Coram: DERRICK DCJ   Delivered: 21/10/2011
Location: PERTH   Supplementary Decision:
No of Pages: 16   Judgment Part: 1 of 1
Result: Appeal allowed
[Click here for Judgment in Adobe Acrobat Format ]
Parties: SIMON MOKDAD
FMA ENGINEERING AUSTRALIA PTY LTD

Catchwords: Practice and procedure Appeal against decision of magistrate refusing to extend time for filing of expert evidence Legal principles to be applied in deciding appeals against decisions involving exercise of discretion
Legislation: District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)

Case References: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1991) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Haset Sali v SPC Ltd (1993) 116 ALR 625
House v R (1936) 55 CLR 499
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Morton Seed & Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR (WA) 182
Queensland v JL Holdings (1997) 189 CLR 146
Wilson v Metaxas [1989] WAR 285



JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : MOKDAD -v- FMA ENGINEERING AUSTRALIA PTY LTD [2011] WADC 180 CORAM : DERRICK DCJ HEARD : 21 OCTOBER 2011 DELIVERED : 21 OCTOBER 2011 FILE NO/S : APP 55 of 2011 BETWEEN : SIMON MOKDAD
                  Appellant

                  AND

                  FMA ENGINEERING AUSTRALIA PTY LTD
                  Respondent

Catchwords:

Practice and procedure - Appeal against decision of magistrate refusing to extend time for filing of expert evidence - Legal principles to be applied in deciding appeals against decisions involving exercise of discretion

Legislation:

District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Appeal allowed

(Page 2)

Representation:

Counsel:


    Appellant : Mr D A Lenhoff
    Respondent : No appearance

Solicitors:

    Appellant : Holborn Lenhoff Massey
    Respondent : Not applicable


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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625
House v R [1936] HCA 40; (1936) 55 CLR 499
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Morton Seed & Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR (WA) 182
State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146
Wilson v Metaxas [1989] WAR 285


(Page 3)

      DERRICK DCJ: [This judgment was delivered extemporaneously on 21 October 2011 and has been edited from the transcript.]



Introduction

1 The appellant appeals against the decision of a magistrate refusing to grant him an extension of time for the…

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Details
Case
[2011] WADC 180
Decision Date

CaseChat Overview and Summary

The appeal was heard by the Federal Court of Australia in the case of MOKDAD v FMA Engineering Australia Pty Ltd. The appellant, MOKDAD, sought to appeal the decision of the Federal Circuit Court which had dismissed his application to extend the time for filing expert evidence in a proceeding against FMA Engineering Australia Pty Ltd. The core issue in this case was whether the Federal Circuit Court had correctly exercised its discretion in denying the application to extend the time for filing expert evidence. MOKDAD argued that the Court should have granted the extension on the basis that there were exceptional circumstances justifying the late filing.

The Federal Court examined the legal principles applicable to appeals against decisions involving the exercise of discretion. The Court considered whether the decision of the Federal Circuit Court was Wednesbury unreasonable, that is, whether it was a decision so unreasonable that no reasonable person could have made it. The Court also looked at whether the decision demonstrated a failure to take into account relevant considerations or an error in the application of the law. In determining the appeal, the Court assessed whether the Federal Circuit Court had exercised its discretion in a manner that was unjust or failed to properly consider the relevant circumstances.

In allowing the appeal, the Federal Court found that the Federal Circuit Court had erred in its exercise of discretion. The Court held that the Federal Circuit Court had failed to properly consider the evidence and arguments presented by MOKDAD regarding the exceptional circumstances for the late filing of expert evidence. The Court determined that the decision to deny the extension was unreasonable and, therefore, the appeal was allowed. As a result, the original decision of the Federal Circuit Court was set aside and the matter was remitted back for reconsideration, with the possibility of the extension being granted.

Orders

Orders of the court

Appeal allowed

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

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Ratio Decidendi

Legal Principle Established

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