JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: READER LAWYERS & MEDIATORS -v- ABC (a pseudonym) [2020] WADC 14
CORAM: VERNON DCJ
HEARD: 15 MAY 2019
DELIVERED : 5 FEBRUARY 2020
FILE NO/S: CIV 336 of 2017
BETWEEN: READER LAWYERS & MEDIATORS
Applicant (Defendant)
AND
ABC (a pseudonym)
Respondent (Plaintiff)
Catchwords:
Summary judgment - Application to strike out pleadings - Failure to disclose a cause of action - Abuse of process - Advocate's immunity - Interlocutory parenting orders - Family Court trial
Legislation:
Family Court Act 1997 (WA), s 70B, s 211(3)
Family Law Act 1975 (Cth), s 61DB, s 94
Rules of the Supreme Court 1971 (WA), O 20 r 19, O 16 r 1
Result:
Application granted
Substituted statement of claim struck out and action dismissed
Representation:
Counsel:
| Applicant (Defendant) | : | Mr S F Popperwell |
| Respondent (Plaintiff) | : | Mr G J Pynt |
Solicitors:
| Applicant (Defendant) | : | Popperwell & Co |
| Respondent (Plaintiff) | : | Not applicable |
Case(s) referred to in decision(s):
Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1
Bride & Bride v Peat Marwick Mitchell [1989] WAR 383
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297
Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355
Corp v Robinson [2012] WASC 490
David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Giannarelli v Wraith (1988) 165 CLR 543
Goddard Elliott v Fritsch [2012] VSC 87
Kendirjian v Lepore [2017] HCA 13
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414; 25 August 1986)
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
McKechnie v Campbell (1996) 17 WAR 62
Re Luck (2003) 203 ALJ 1; [2003] HCA 70
Rogers v Roche [2016] QCA 340; [2017] 2 Qd R 306
VERNON DCJ:
Introduction
By an application dated 30 January 2019, the defendant applied to strike out the plaintiff's substituted statement of claim dated 24 January 2019 as disclosing no reasonable cause of action or as an abuse of process, pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC). Alternatively, the defendant sought leave to apply for judgment, or a permanent stay of proceedings, pursuant to O 16 r 1 RSC and the court's inherent jurisdiction.
In summary, the defendant submits that advocate's immunity applies to defeat the plaintiff's claim in negligence, even if proved, and that the action is an abuse of process, because it seeks to impugn…
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- AGLC
- Reader Lawyers and MEDIATORS v ABC (a pseudonym) [2020] WADC 14
- Case
- [2020] WADC 14
- Decision Date
CaseChat Overview and Summary
In addressing the legal issues, the court considered the principles established in Carr v Finance Corporation of Australia Ltd (No 1) and CDW v LVE. The court held that a judgment refusing to set aside a default judgment is interlocutory and not final, as it does not finally determine the rights of the parties. The court also found that the interlocutory parenting orders were not final and that the Court of Appeal's jurisdiction to hear an appeal from a Family Court magistrate's decision depended on whether the order was interlocutory or not. The court emphasised the importance of distinguishing between the legal and practical effects of a judgment when determining its finality.
The court's reasoning led to the conclusion that the appeal was not competent because the interlocutory order was not final. Therefore, the appeal was dismissed. The court found that the applicants' right to make a further application to set aside the default judgment was purely theoretical, and hence the judgment was final. The court also held that the Court of Appeal did not have jurisdiction to hear an appeal from the Family Court magistrate's interlocutory parenting orders.
The court made no orders regarding the interlocutory parenting orders, as it did not have jurisdiction to hear the appeal from the Family Court magistrate's decision. The applicants' application for summary judgment and to strike out the defendant's pleadings remained pending before the Federal Circuit Court of Australia.
Orders
Orders of the court
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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
In Carr v Finance Corporation of Australia Ltd (No 1)[17] an appeal was brought without leave from a decision refusing to set aside a default judgment obtained following the defendant's failure to file a defence within the time specified. The respondent objected to the competency of the appeal. In holding that a default judgment was an interlocutory order, Gibbs CJ observed:[18]The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theroretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal.[17] Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246.[18] Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 248. In CDW v LVE[19] the Court of Appeal considered an appeal from a Family Court magistrate dismissing an application for parenting orders. The magistrate had determined that the changes that had occurred since the parenting orders had been made were not sufficient to allow the matter to proceed again through the court process.[20] Relevantly, the Court of Appeal's jurisdiction to consider an appeal from a decision of a Family Court magistrate arose only if the decree appealed against was not an interlocutory order. An appeal against an interlocutory order of a Family Court magistrate lay with Family Court of Western Australia, with leave.[21][19] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297.[20] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [68] (Martin CJ, Buss JA and Mitchell J agreeing).[21] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [40].