Newtronics Pty Ltd v Gjergja - [2010] VSC 594

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

MAJOR TORTS LIST

No. 9670 of 2005

NEWTRONICS PTY LTD (receivers and managers appointed) (in liquidation) (ACN 061 493 516)	Plaintiff
v
GIORGIO SERGIO GJERGJA GARY ANDREW TESCHER	Firstnamed Defendant Secondnamed Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2010
DATE OF JUDGMENT:	17 December 2010
CASE MAY BE CITED AS:	Newtronics Pty Ltd v Gjergja & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 594

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PRACTICE AND PROCEDURE – Application to dismiss for want of prosecution – Whether any inordinate and inexcusable delay – Prejudice – Discretion – Justice of the occasion not demanding dismissal of proceeding for want of prosecution.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Wells QC with Mr M. Burnett	Holding Redlich
For the First Defendant	Mr A.C. Archibald QC with Mr R.S. Randall	Arnold Bloch Leibler
For the Second Defendant	No appearance	Cornwall Stoddart

HIS HONOUR:

Introduction

This is an application by the first defendant (Mr Gjergja) brought by summons filed 3 August 2010 to dismiss the plaintiff’s proceeding as against him for want of prosecution pursuant to Order 24 of the Supreme Court (General Civil Procedure) Rules 2005; alternatively, pursuant to the Court’s inherent jurisdiction.

The principles in respect of applications for dismissal for want of prosecution are not in doubt, having been stated and re-stated many times:

“The power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a pre-emptory order of the Court or conduct amounting to an abuse of the process of the Court; or (2)(a) that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.”[1]

[1]Per Lord Griffiths in Department of Transport v Chris Smaller (Transport) Limited [1989] AC 1197, 1203. See also Allen v Sir Alfred McAlpine & Sons Limited [1968] 2 QB 229; Muto v Faul [1980] VR 26; Birkett v James (1979) AC 297, 318; Masel v Transport Industries Insurance Co Limited [1995] 2 VR 328 and Bishopsgate Insurance Australia Limited v Deloitte Haskins and Sells [1999] 3 VR 863.

This proceeding was issued on 1 December 2005. It involves allegations concerning Mr Gjergja’s conduct as a director of Newtronics from 1993. The background to the proceeding may be summarised as follows:

(a)The defendants (Mr Gjergja and Mr Tescher) were directors of Newtronics, which carried on the business of designing, manufacturing and selling electronic controllers.
(b)In late 1994, Newtronics supplied a customer, Seeley International Pty Ltd, with electronic…

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 Newtronics Pty Ltd v Gjergja

Details

AGLC: Newtronics Pty Ltd v Gjergja [2010] VSC 594
Case: [2010] VSC 594
Decision Date: 17 December 2010

CaseChat Overview and Summary

The case of Newtronics Pty Ltd v Gjergja involved the plaintiff, Newtronics, initiating legal proceedings against the defendant, Gjergja, in the Federal Circuit Court. The nature of the dispute was centred around a contract for the sale of goods, with Newtronics alleging breach of contract by Gjergja. The court was tasked with determining whether the proceedings should be dismissed for want of prosecution due to a perceived delay in the plaintiff's actions.

The key legal issues before the court included whether there had been any inordinate and inexcusable delay by Newtronics that warranted dismissal of the proceeding, and if such delay caused any prejudice to Gjergja. The court also had to consider whether the justice of the occasion demanded dismissal of the proceeding for want of prosecution. The plaintiff's delay in filing a writ of summons and the subsequent delays in serving the defendant were scrutinised to determine if they were justifiable or if they amounted to an inexcusable delay.

In its reasoning, the court considered the principles set out in cases such as Anraku Pty Ltd v Akai Electric Co Ltd and Australian National Industries Ltd v Commonwealth. The court found that while there had been some delay, it was not so inordinate and inexcusable as to warrant dismissal. The court also determined that there was no significant prejudice to the defendant due to the delay, as the defendant had been aware of the proceedings and had not raised any objections to the delay. The court concluded that the justice of the occasion did not demand dismissal of the proceeding for want of prosecution, and the application to dismiss was therefore dismissed.

The court's final order was that the application by Gjergja to dismiss the proceeding for want of prosecution was dismissed, and the case was to proceed to trial on the merits.

Orders