Panel Tank Technologies (Australia) Pty Ltd Formerly NAREW Holdings Pty Ltd v Pioneer Concrete (WA) Pty Ltd

[2006] WASCA 89

PANEL TANK TECHNOLOGIES (AUSTRALIA) PTY LTD Formerly NAREW HOLDINGS PTY LTD & ANOR -v- PIONEER CONCRETE (WA) PTY LTD [2006] WASCA 89

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 89
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:15/2005	Heard:	5 MAY 2006
Coram:	PULLIN JA	Delivered:	5/05/06
No of pages:	3	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	PANEL TANK TECHNOLOGIES (AUSTRALIA) PTY LTD Formerly NAREW HOLDINGS PTY LTD KEVIN ALAN BLACK PIONEER CONCRETE (WA) PTY LTD
Catchwords:	Practice and procedure Application to strike out appeal for want of prosecution turns on own facts
Legislation:	Nil
Case References:	Krakouer v The Queen (1998) 194 CLR 202 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PANEL TANK TECHNOLOGIES (AUSTRALIA) PTY LTD Formerly NAREW HOLDINGS PTY LTD & ANOR -v- PIONEER CONCRETE (WA) PTY LTD [2006] WASCA 89 CORAM : PULLIN JA HEARD : 5 MAY 2006 DELIVERED : 5 MAY 2006 FILE NO/S : CACV 15 of 2005 BETWEEN : PANEL TANK TECHNOLOGIES (AUSTRALIA) PTY LTD Formerly NAREW HOLDINGS PTY LTD

First Appellant

KEVIN ALAN BLACK
Second Appellant

AND

PIONEER CONCRETE (WA) PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'BRIEN DCJ

Citation : PIONEER CONCRETE (WA) PTY LTD -v- NAREW HOLDINGS PTY LTD & ANOR [2005] WADC 25

File No : CIV 666 of 2000

(Page 2)

Catchwords:

Practice and procedure - Application to strike out appeal for want of prosecution - turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant : No appearance
Second Appellant : In person
Respondent : Mr K E Yin

Solicitors:

First Appellant : Holborn Lenhoff Massey
Second Appellant : In person
Respondent : Murcia Pestell Hilliard

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

Krakouer v The Queen (1998) 194 CLR 202

Case(s) also cited:

Nil

(Page 3)

1 PULLIN JA: The respondent has made an application to strike out the appeal for want of prosecution. Judgment was given in the District Court on 18 February 2005. The appeal was instituted on 10 March 2005 by the two appellants, that is, Mr Black and the company, Panel Tank Technologies. There was a notice of cross-appeal on 24 March 2005 and on 25 July the appeal index was approved. On 10 August 2005 or thereabouts was an order made winding up the first appellant.

2 On 23 December 2005 there was a fax sent requesting the appellants to enter the appeal for hearing by 20 January 2006 or an application would be made to strike out the appeal. On 3 January 2005 the second appellant, Mr Black, filed a notice that he was representing himself.

3 On 23 January 2005, no steps having been taken to enter the appeal for hearing, this application to strike out was made.

4 In relation to an application to dismiss an appeal for want of prosecution, the factors to be taken into account have been considered by the High Court in Krakouer v The Queen (1998) 194 CLR 202. They have indicated that one is concerned, on this sort of application, with the reasons for the delay and any questions of prejudice that might be suffered by the other party if an extension of time is not granted for the taking of the steps to bring the matter to a hearing.

5 In this case there is no indication that there is any prejudice that will be suffered by the respondent, particularly as at the moment there is no stay of execution. In those circumstances I consider that it is not appropriate to strike out the appeal but rather to grant an extension of time to Mr Black so that he can arrange for the matter to be entered for trial.

6 I dismiss the application to strike out the appeal for want of prosecution.