NYONI -v- PATTERSON [2011] WASCA 215

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 215
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:89/2011	Heard:	22 SEPTEMBER 2011
Coram:	NEWNES JA MURPHY JA	Delivered:	7/10/11
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	EMSON NYONI MURRAY PATTERSON ROBERT BATEMAN
Catchwords:	Practice and procedure Statement of claim struck out with leave to replead Minute of substituted statement of claim filed Leave to amend refused and action dismissed Appeal against original decision to strike out statement of claim No substantial injustice if decision not reversed No error in striking out statement of claim
Legislation:	Rules of the Supreme Court 1971 (WA), O 20 r 19
Case References:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NYONI -v- PATTERSON [2011] WASCA 215 CORAM : NEWNES JA

MURPHY JA

HEARD : 22 SEPTEMBER 2011 DELIVERED : 7 OCTOBER 2011 FILE NO/S : CACV 89 of 2011 BETWEEN : EMSON NYONI

Appellant

AND

MURRAY PATTERSON

First Respondent

ROBERT BATEMAN

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 2610 of 2010

Catchwords:

Practice and procedure - Statement of claim struck out with leave to replead - Minute of substituted statement of claim filed - Leave to amend refused and action dismissed - Appeal against original decision to strike out statement of claim - No substantial injustice if decision not reversed - No error in striking out statement of claim

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

First Respondent : Mr A J Sefton

Second Respondent : Mr A J Sefton

Solicitors:

Appellant : In person

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

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

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285

(Page 3)

1 JUDGMENT OF THE COURT: The appellant seeks to appeal against a decision of Master Sanderson striking out the appellant's statement of claim. The appeal notice was filed out of time and the appellant has applied for an extension of time to file and serve it. As the decision of the master was an interlocutory decision, the appellant also requires leave to appeal: Supreme Court Act 1935 (WA), s 60(1)(f).

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 Nyoni v Patterson

Details

AGLC: Nyoni v Patterson [2011] WASCA 215
Case: [2011] WASCA 215
Decision Date: 7 OCTOBER 2011

CaseChat Overview and Summary

In the case of Nyoni v Patterson, the plaintiff, Nyoni, filed a statement of claim against the defendant, Patterson, seeking damages for personal injury. The Federal Circuit Court dismissed the action and struck out the statement of claim, granting leave to replead. Upon filing a minute of the substituted statement of claim, the court refused leave to amend and dismissed the action. The plaintiff appealed the original decision to strike out the statement of claim. The court was required to determine whether the dismissal was justified and if there was a substantial injustice if the decision was not reversed.

The court considered the reasons for the original dismissal and whether the substituted statement of claim addressed the deficiencies. It was noted that the original statement of claim failed to particularise the cause of action and was vague and conclusory. The substituted statement of claim, while improved, still contained significant deficiencies and did not adequately address the issues raised by the court. The court found that there was no substantial injustice if the decision to dismiss the action was not reversed, and the appeal was dismissed.

The court's reasoning was based on the requirement that a statement of claim must particularise the cause of action and provide sufficient detail to allow the defendant to understand the basis of the claim. The court found that the substituted statement of claim still failed to meet this standard, and therefore, the decision to dismiss the action was upheld. The appeal was dismissed, and the plaintiff's action was dismissed with no orders for costs.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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