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Noye v Gwilliam

Noye v Gwilliam

Case [2006] WASC 183 25 August 2006

Jurisdiction

Limitation Periods

Compensatory Damages

Malicious Prosecution

Misfeasance in Public Office

Civil Litigation & Procedure

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NOYE -v- GWILLIAM [2006] WASC 183

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 183
Case No:	CIV:1849/1999	Heard:	31 JULY 2006
Coram:	MASTER NEWNES	Delivered:	25/08/06
No of pages:	15	Judgment Part:	1 of 1
Result:	Order that particulars be provided of the statement of claim
Category:	B
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Parties:	JEFFREY HOWARD NOYE EDWARD CLAYTON GWILLIAM
Catchwords:	Practice and procedure Application to strike out action for want of prosecution Whether inordinate and inexcusable delay Application to strike out statement of claim as disclosing no cause of action or as embarrassing Litigant in person Relevant considerations Turns on own facts
Legislation:	Nil
Case References:	Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Birkett v James [1978] AC 297 Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863 Dare v Pulham (1982) 148 CLR 658 Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 Hughes v Gales (1995) 14 WAR 434 Jakovljevic v L & B Doslov [2000] WASCA 131 Lewandowski v Lovell (1994) 11 WAR 124 Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd [2004] WASC 5 Muto v Faul [1980] VR 26 Neilson v City of Swan [2006] WASCA 94 Northern Territory of Australia v Mengel (1995) 185 CLR 307 Noye & Anor v Gwilliam & Anor [2002] WASC 227 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Roddan v Gwilliam [2005] WASCA 209 Smith v McCusker [2000] WASCA 320 Wan v Sweetman (1998)19 WAR 94 Kenny v Sholl (1905) 7 WALR 197 Mann v Board of Health of ACT, Bissett, Withers, Clarke, O'Donnell & Hurley (1996) 67 FCR 383

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NOYE -v- GWILLIAM [2006] WASC 183 CORAM : MASTER NEWNES HEARD : 31 JULY 2006 DELIVERED : 25 AUGUST 2006 FILE NO/S : CIV 1849 of 1999

Consolidated with CIV 1812 of 1999 by Order of 8 March 2002

BETWEEN : JEFFREY HOWARD NOYE

Plaintiff

AND

EDWARD CLAYTON GWILLIAM

Defendant

Catchwords:

Practice and procedure - Application to strike out action for want of prosecution - Whether inordinate and inexcusable delay - Application to strike out statement of claim as disclosing no cause of action or as embarrassing - Litigant in person - Relevant considerations - Turns on own facts

Legislation:

Nil

Result:

Order that particulars be provided of the statement of claim

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : In person

Defendant : Mr T Darbyshire

Solicitors:

Plaintiff : In person

Defendant : Kott Gunning

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

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Birkett v James [1978] AC 297
Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863
Dare v Pulham (1982) 148 CLR 658
Gould & Birbeck & Bacon…

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 Noye v Gwilliam

Details

AGLC: Noye v Gwilliam [2006] WASC 183
Case: [2006] WASC 183
Decision Date

CaseChat Overview and Summary

The case of Noye v Gwilliam was heard by Master Newnes in the Supreme Court of Western Australia. The plaintiff, Jeffrey Howard Noye, is suing the defendant, Edward Clayton Gwilliam, alleging malicious prosecution, misfeasance in public office, and damages. The defendant has applied for the action to be dismissed for want of prosecution or for the substituted statement of claim to be struck out on the basis that it does not disclose a reasonable cause of action or is embarrassing. The plaintiff was a former police officer who was investigated for alleged misconduct in 1992 and faced criminal and internal disciplinary charges in 1993. All charges were eventually dropped in 1998. The plaintiff filed the initial statement of claim in 1999 and has since filed multiple amended statements of claim. The defendant argues that the plaintiff has caused inordinate and inexcusable delay in prosecuting the action, which prejudices the defendant. The plaintiff contends that the defendant acquiesced in the delay and that much of the delay was caused by the plaintiff's former co-claimant, Mr. Roddan, who appealed a decision to strike out his claim. The court found that while there was significant delay in the action, much of it was not due to the plaintiff's lack of diligence. The court also found that the plaintiff's status as a litigant in person should be taken into account. The court did not dismiss the action but ordered that the plaintiff provide further particulars of the substituted statement of claim in relation to the claims of malicious prosecution, misfeasance in public office, and damages. The court found that the current particulars were inadequate and that a request for further and better particulars from the defendant would provide clearer direction to the plaintiff. The court proposed to set time limits for the filing and serving of such a request, and for a response, and to reconsider the case after the expiration of those times.

Orders