Posselt v Wolfenden

[1998] FCA 1553

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 136 OF 1995

BETWEEN:             ALLAN JOHN POSSELT AND
  LYNETTE JANICE POSSELT
  FIRST APPLICANTS

LAVAR PTY LTD
  SECOND APPLICANT

AND  KENNETH JAMES WOLFENDEN
  FIRST RESPONDENT

WAYNE PATRICK WARRICK
  SECOND RESPONDENT

WILLIAM ARTHUR HEADLEY
  THIRD RESPONDENT

PRUDENTIAL ASSURANCE COMPANY LIMITED
  FOURTH RESPONDENT

WILLIAM WORKMAN
  FIFTH RESPONDENT

(AND OTHERS BY CROSS CLAIMS)

JUDGES:	FRENCH, DRUMMOND AND CARR JJ
DATE OF ORDER:	19 NOVEMBER 1998
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.

2. The fourth respondent is to pay the applicants’ costs of the application, to be taxed and paid forthwith.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 136 OF 1995

BETWEEN:

ALLAN JOHN POSSELT AND
LYNETTE JANICE POSSELT
FIRST APPLICANTS

LAVAR PTY LTD
SECOND APPLICANT

AND:

KENNETH JAMES WOLFENDEN
FIRST RESPONDENT

WAYNE PATRICK WARRICK
SECOND RESPONDENT

WILLIAM ARTHUR HEADLEY
THIRD RESPONDENT

THE PRUDENTIAL ASSURANCE COMPANY LIMITED
FOURTH RESPONDENT

WILLIAM WORKMAN
FIFTH RESPONDENT

(AND OTHERS BY CROSS CLAIMS)

JUDGES:

FRENCH, DRUMMOND AND CARR JJ

DATE:

19 NOVEMBER 1998

PLACE:

PERTH

EX TEMPORE REASONS FOR JUDGMENT

FRENCH J:
The Court is agreed in this case that leave should be refused.  In so concluding, speaking for myself, I have regard to the history of the matter which has been elucidated in exchange between counsel for the applicants and Drummond J.  I have regard also to the mechanisms

that are available by way of interlocutory processes to assure that both parties are aware of the case raised against them by the time the matter gets to trial and in particular the mechanisms of the provision of witness statements.

The trial judge who has the management of this matter has had to deal with strike-out claims in relation to similar issues on the pleadings up to the present time and having regard to that history and the other mechanisms of particulars and exchange of witness statements that are available, there is little probability of any substantial injustice being suffered by the fourth respondent by reason of the matters of which the fourth respondent complains.  I am not satisfied either that on the face of the pleadings the case is so spare that the fourth respondent, which has filed a defence responsive to the statement of claim, is in a position not to know the general nature of the case it is going to meet.

So far as the question of settlement prospects is concerned, it is well known that such settlement discussions are conducted in a without prejudice setting where the parties invite each other to talk about the realities of their respective positions and that one does not expect settlement discussions to necessarily be hampered by perceived inadequacies in the pleadings.

It seems to me that this is a matter, having regard to the likely quantum of it, which should simply move on to trial and see an end to this interlocutory skirmishing, subject only to the possibility of some sensible negotiation or mediation in the interim.  So speaking for myself, for those reasons I would dismiss the application for leave.

Drummond J:

I agree with the order proposed by the learned Presiding Judge and with his Honour’s reasons.

Carr J:

I agree that leave should be refused for the reasons given by his Honour, the Presiding Judge.  I would only add that, in my view, the decision of the judge at first instance is not attended
with sufficient doubt to justify granting leave.  I would join in dismissing the motion.

I certify that this and the preceding two (2) pages are a true copy of the Ex tempore Reasons for Judgment herein of the Court.

Associate:

Dated:            19 November 1998

Counsel for the Applicants:	Mr N.D.C. Dillon
Solicitor for the Applicants:	Corrs Chambers Westgarth
Counsel for the Fourth Respondent:	Mr C.G. Colvin
Solicitor for the Fourth Respondent:	Jackson McDonald
Date of Hearing:	19 November 1998
Date of Judgment:	19 November 1998