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Noye v Gwilliam

Noye v Gwilliam

Case [2000] WASC 206 24 August 2000

Appeal

Discovery & Disclosure

Jurisdiction

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NOYE & ANOR -v- GWILLIAM [2000] WASC 206

CORAM: MASTER SANDERSON

HEARD: 10 AUGUST 2000

DELIVERED : 24 AUGUST 2000

FILE NO/S: CIV 1849 of 1999

BETWEEN: JEFFREY HOWARD NOYE
First Plaintiff
LINDSAY GORDON RODDAN
Second Plaintiff
AND
EDWARD CLAYTON GWILLIAM
Defendant

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Turns on its own facts

Legislation:

Limitation Act

Rules of the Supreme Court, O 21 r 1, r 5(5)

Result:

Application for leave refused
Leave to replead

Representation:

Counsel:

First Plaintiff                :     In person
Second Plaintiff            :     In person
Defendant:     Mr T Darbyshire

Solicitors:

First Plaintiff                :     In person
Second Plaintiff            :     In person
Defendant:     Kott Gunning

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

Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343
Little v Law Institute of Victoria (No 3) [1990] VR 257
Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 21 April 1999
Northern Territory of Australia & Ors v Mengel & Ors (1996) 185 CLR 307
Wan v Sweetman (1998) 19 WAR 94

Case(s) also cited:

Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126
Cabassi v Vila (1940) 64 CLR 130
Coe v Commonwealth (1979) 24 ALR 118
Dalgety Australia Ltd v de Vahl Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Danby v Beardsley (1880) 43 LT 603
Gibbons v Duffell (1932) 47 CLR 520
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Mann v O'Neill [1996] 191 CLR 204
Marrinan v Vibart [1962] 3 All ER 380
Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263
Raleigh v Goschen [1898] 1 Ch 73
Roy v Prior [1971] AC 470
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35
Watson v M'Ewan [1905] AC 480

MASTER SANDERSON: The writ of summons in this matter was issued on 2 August 1999. A statement of claim was endorsed on the writ and although it contained only ten paragraphs it ran to 24 pages. By chamber summons dated 25 August 1999 the defendant applied to strike out the statement of claim. The matter came on for a case management conference on 1 September 1999 and Registrar Powell programmed the strike out application through to a special appointment. On 15 September 1999 the plaintiffs lodged an amended statement of claim. The statement of claim was amended pursuant to O 21 r 1. On 4 October 1999 the defendant applied to strike out the amended statement of claim. The matter came on before me in chambers on 15 October 1999. On the plaintiffs' application I ordered, inter alia, that the plaintiffs have leave to file and serve a minute of further amended statement of claim within 14 days. The matter was adjourned to 3 November 1999 to allow consideration of this minute of further amended statement of claim.
On…

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 [2000] WASC 206
Case: [2000] WASC 206
Decision Date: 24 AUGUST 2000

CaseChat Overview and Summary

The matter before the court involved a legal dispute between Noye and Gwilliam. The plaintiff, Noye, sought leave to amend their statement of claim. The primary focus of the case was whether Noye's application for leave to amend their statement of claim should be granted. The case was heard and determined in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the proposed amendments to the statement of claim were necessary and whether they were being made in a timely manner. The court considered whether the amendments would introduce new matters, whether they were an abuse of the court's process, and whether they would cause any prejudice to the defendant, Gwilliam. Additionally, the court examined whether the proposed amendments had merit and whether there were any other factors that should be taken into account when determining whether to grant leave to amend.

In delivering the decision, the court held that the application for leave to amend the statement of claim should be granted. The court found that the proposed amendments were necessary to address a significant issue that had arisen during the course of the proceedings. The court also determined that the amendments were not being made in an attempt to introduce new matters or to abuse the court's process. Furthermore, the court found that there would be no undue prejudice to the defendant if the amendments were allowed. Finally, the court considered that the proposed amendments had merit and that there were no other factors that would prevent the grant of leave to amend. The court granted the application for leave to amend the statement of claim.

Orders