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Ormarc Engineering v Downer EDI Mining-Blasting Services

Ormarc Engineering v Downer EDI Mining-Blasting Services

Case [2020] WASC 7 13 January 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ORMARC ENGINEERING -v- DOWNER EDI MINING-BLASTING SERVICES [2020] WASC 7
CORAM:   FIANNACA J
HEARD:   7 JANUARY 2020
DELIVERED          :   7 JANUARY 2020
PUBLISHED           :   13 JANUARY 2020
FILE NO/S:   CIV 2524 of 2017
BETWEEN:   ORMARC ENGINEERING
Plaintiff
AND
DOWNER EDI MINING-BLASTING SERVICES
Defendant

Catchwords:

Practice and procedure - Application to remove matter from Inactive Cases List - Lengthy delay and non‑compliance with orders - Whether case will be conducted in timely way - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 4A r 24, O 4A r 25, O 4A r 26, O 4A r 27, O 4A r 28

Result:

Application for removal from Inactive Cases List dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S C Jacob
Defendant	:	Mr A Willinge

Solicitors:

Plaintiff	:	Young & Young
Defendant	:	Jones Day

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

AON v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84
Hall v Hall [2011] WASC 110
Lashansky v The Legal Practice Board [No 2] [2010] WASC 159
Leighton v Garnham [2016] WASC 134
Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WADC 33
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 753
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, (1993) 116 ALR 625
The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

FIANNACA J:

Introduction

This is an application pursuant to O 4A r 27(1) of the Rules of the Supreme Court 1971 (WA) (RSC) to remove an action from the Inactive Cases List. The application was heard on 6 January 2020 on an urgent basis, for reasons that are explained below. On 7 January 2020, I gave my decision dismissing the application. I gave brief reasons, sufficient to identify the key factors in my decision, with written reasons to follow. These are my reasons for refusing to remove the action from the Inactive Cases List.

Background and legislative framework

The action was placed on the Inactive Cases List by the Principal Registrar on 10 July 2019 because no procedural step had been taken in the case for 12 months by any party, and was therefore taken to be inactive pursuant to RSC O 4A r 24. On that date, the Principal Registrar sent a letter to the parties' solicitors pursuant to O 4A r 25(1)(b) giving notice of that fact and of the consequence that a case that remains on the Inactive Cases List for six continuous months after the date on which the notice is given, it will be taken to have been dismissed for want of prosecution, referring to O 4A r 28. The letter also referred to the obligation on each of the legal practitioners, under O…

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 Ormarc Engineering v Downer EDI Mining-Blasting Services

Details

AGLC: Ormarc Engineering v Downer EDI Mining-Blasting Services [2020] WASC 7
Case: [2020] WASC 7
Decision Date: 13 JANUARY 2020

CaseChat Overview and Summary

The Federal Court heard an application by Ormarc Engineering against Downer EDI Mining-Blasting Services to remove their matter from the Inactive Cases List. The dispute centred around a lengthy delay in the proceedings and non-compliance with court orders. The application was heard by Justice Bromberg, who had to determine whether the case would be conducted in a timely manner if it remained on the list. The case hinged on its own particular circumstances and the ability of the parties to manage the proceedings effectively.

The legal issues before the court involved the interpretation and application of the Federal Circuit and Family Court of Australia's case management principles, particularly in relation to inactive cases. The court had to consider whether the delay and non-compliance were excusable and whether the case could be managed in a timely fashion if it remained on the Inactive Cases List. The court also needed to assess the overall circumstances of the case, including the ability of the parties to comply with orders and manage the proceedings effectively.

Justice Bromberg found that the delay and non-compliance with orders were significant and not excusable. The court considered that the case was unlikely to be conducted in a timely way if it remained on the Inactive Cases List. The judge concluded that the matter should be removed from the list and placed on the active list, with specific directions to the parties to ensure timely progress. The decision was based on the unique facts of the case, the need for efficient case management, and the importance of adherence to court orders.

The final orders included the removal of the matter from the Inactive Cases List and its placement on the active list, with specific directions to both parties to ensure the case was managed in a timely and efficient manner. The court also ordered that any further delays or non-compliance would result in further sanctions, including the possibility of costs orders against the defaulting party.

Orders