O'DONNELL GRIFFIN PTY LTD -v- DAVIS & ORS [2007] WASC 215

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 215
Published:	07/09/2007
Case No:	CIV:1818/2007	Heard:	16 AUGUST 2007
Coram:	TEMPLEMAN J	Delivered:	16/08/07
No of pages:	14	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	O'DONNELL GRIFFIN PTY LTD (ACN 003 905 093) ROGER DAVIS SIEMENS LTD (ACN 004 347 888) THIESS SERVICES PTY LTD (ACN 010 221 486) T/AS STCJV SERVICES FOR TELECOMMUNICATIONS JOINT VENTURE (ABN 61 507 423 189)
Catchwords:	Practice and procedure Application for interlocutory injunction to prevent adjudication under the Construction Contracts Act 2004 (WA) No cause of action disclosed Failure to comply with O 59 r 9 Damages an adequate remedy Balance of convenience favours defendant Indemnity costs
Legislation:	Construction Contracts Act 2004 (WA), s 3, s 6, s 25, s 27, s 28, s 31, s 45, s 46 Rules of the Supreme Court 1971 (WA), O 6, O 59
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWCA 228 FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61-384 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Lionsgate Australia Pty Ltd v Macquarie Private Portfolio Management Ltd [2007] NSWSC 318 Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : O'DONNELL GRIFFIN PTY LTD -v- DAVIS & ORS [2007] WASC 215 CORAM : TEMPLEMAN J HEARD : 16 AUGUST 2007 DELIVERED : 16 AUGUST 2007 PUBLISHED : 7 SEPTEMBER 2007 FILE NO/S : CIV 1818 of 2007 BETWEEN : O'DONNELL GRIFFIN PTY LTD (ACN 003 905 093)

Plaintiff

AND

ROGER DAVIS

First Defendant

SIEMENS LTD (ACN 004 347 888)

THIESS SERVICES PTY LTD (ACN 010 221 486) T/AS STCJV SERVICES FOR TELECOMMUNICATIONS JOINT VENTURE (ABN 61 507 423 189)

Second Defendant

Catchwords:

Practice and procedure - Application for interlocutory injunction to prevent adjudication under the Construction Contracts Act 2004 (WA) - No cause of action disclosed - Failure to comply with O 59 r 9 - Damages an adequate remedy - Balance of convenience favours defendant - Indemnity costs

(Page 2)

Legislation:

Construction Contracts Act 2004 (WA), s 3, s 6, s 25, s 27, s 28, s 31, s 45, s 46

Rules of the Supreme Court 1971 (WA), O 6, O 59

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff : Mr P…

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.

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Details

Case: [2007] WASC 215
Decision Date: 16 AUGUST 2007

CaseChat Overview and Summary

The case of O'Donnell Griffin Pty Ltd v Davis involved an application by O'Donnell Griffin, the applicant, for an interlocutory injunction to prevent the defendant, Davis, from initiating adjudication proceedings under the Construction Contracts Act 2004 (WA). The dispute arose from a construction contract between the parties, and the applicant sought to restrain the defendant from pursuing adjudication on the grounds that it would be an abuse of process.

The primary legal issues before the court were whether the applicant had disclosed a cause of action, whether the applicant had complied with the relevant procedural rules, and the balance of convenience between the parties. The court had to determine if the applicant's failure to comply with procedural rules and the adequacy of damages as a remedy would influence the outcome of the injunction application.

The court found that the applicant had not disclosed a cause of action and had failed to comply with Order 59 of the Supreme Court of Western Australia's rules. The court also noted that damages would be an adequate remedy for the applicant if the adjudication proceeded. Furthermore, the balance of convenience favoured the defendant, as the applicant's delay in seeking the injunction would prejudice the defendant. Consequently, the court dismissed the application for an interlocutory injunction. In addition, the court ordered the applicant to pay the defendant's costs on an indemnity basis.

Orders

Orders of the court

Application 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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