Practice and procedure - Indorsement of writ - Where indorsement of writ by appellant contained no facts and merely described a cause of action - Whether defective indorsement - Limitation defence - Whether defective indorsement could be amended - Whether subsequent statement of claim cured irregularity - Whether statement of claim alleged new cause of action
Practice and procedure - Strike-out application by respondents filed out of time - Application for leave to extend time - Principles applicable to application for leave to extend time - Whether prejudice to appellant by reason of delay in application to strike out - Whether judge erred in granting extension of time
Practice and procedure - Appeal under pt 2 r 15(6) of District Court Rules - De novo review - Where deputy registrar had struck out indorsement and dismissed action - Whether deputy registrar's orders binding on parties pending determination of review to District Court judge under pt 2 r 15(6) of District Court Rules
Practice and procedure - Whether leave required to appeal from District Court judge's order dismissing action because action failed to disclose a reasonable cause of action
Legislation:
Limitation Act 2005 (WA), s 15, s 40, s 79 Rules of the Supreme Court 1971 (WA), O 2, O 3 r 5, O 6, O 20 r 19, O 21 District Court Rules 2005 (WA), pt 2 r 15
[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 Ogbonna v Programmed Integrated Workforce Ltd [No 2]
The appeal was dismissed by the Court of Appeal. The Court found that the original writ of summons was defective, disclosing no reasonable cause of action. The Court also found that any amendment to the writ would constitute a new cause of action, which was statute-barred. The Court held that the appellant's action should be dismissed because no amendment to the writ was available. The Court also held that the primary judge was correct to allow the respondents' application to extend the time for filing the strike-out application and to strike out the indorsement on the writ. The Court found that the appellant's grounds of appeal had no merit. Finally, the Court held that leave to appeal was required and refused the appellant leave to appeal.