REGAN -v- GIACOMUCCI & ANOR [2002] WASC 222

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 222
Case No:	CIV:1065/1995	Heard:	29 JULY 2002
Coram:	ACTING MASTER CHAPMAN	Delivered:	17/09/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Action dismissed for want of prosecution
Category:	B
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Parties:	MINDA ROMANILLOS REGAN BENITO GIACOMUCCI KALGOORLIE TAXI CAR DRIVERS ASSOCIATION INC
Catchwords:	Practice and procedure Leave to bring summary judgment application Summary judgment Judgment on admissions Dismissal of action for want of prosecution Inordinate delay Prejudice to the defendants
Legislation:	Rules of the Supreme Court 1971 WA, O 16, O 30 r 3
Case References:	Duke v Royalstar Pty Ltd [2001] WASCA 273 Jakovljevic v L & B Doslov [2000] WASCA 131 Ulowski v Miller [1968] SASR 277 Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Evans v Bartlam [1937] AC 473 Fancourt v Mercantile Credits Ltd (1993) 154 CLR 87 Hughes v Gale (1995) 14 WAR 434 Jacob v Booth's Distillery Co Ltd (1901) 85 LT 262 Kalgoorlie Taxi Car Owners Association Inc v Regan, unreported; SCt of WA (Templeman J); Library No 980075; 20 February 1998 Latrobe Country Credit Co-operative Ltd v Smith & Ors (1991) 1 VR 440 Lewandowski v Lovell (1994) 11 WAR 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : REGAN -v- GIACOMUCCI & ANOR [2002] WASC 222 CORAM : ACTING MASTER CHAPMAN HEARD : 29 JULY 2002 DELIVERED : 17 SEPTEMBER 2002 FILE NO/S : CIV 1065 of 1995 BETWEEN : MINDA ROMANILLOS REGAN

Plaintiff

AND

BENITO GIACOMUCCI

First Defendant

KALGOORLIE TAXI CAR DRIVERS ASSOCIATION INC

Second Defendant

Catchwords:

Practice and procedure - Leave to bring summary judgment application - Summary judgment - Judgment on admissions - Dismissal of action for want of prosecution - Inordinate delay - Prejudice to the defendants

Legislation:

Rules of the Supreme Court 1971 WA, O 16, O 30 r 3

(Page 2)

Result:

Action dismissed for want of prosecution

Category: B

Representation:

Counsel:

Plaintiff : Mr M D Evans

First Defendant : Mr M S Macdonald

Second Defendant : Mr K E E Yin

Solicitors:

Plaintiff : Corsers

First Defendant : Macdonald Rudder

Second Defendant : Macdonald Rudder

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

Duke v Royalstar Pty Ltd [2001] WASCA 273
Jakovljevic v L & B Doslov [2000] WASCA 131
Ulowski v Miller [1968] SASR 277

Case(s) also cited:

Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Evans v Bartlam [1937] AC 473
Fancourt v Mercantile Credits Ltd (1993) 154 CLR 87
Hughes v Gale (1995) 14 WAR 434
Jacob v Booth's Distillery Co Ltd (1901) 85 LT 262
Kalgoorlie Taxi Car Owners Association Inc v Regan,…

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 Regan v GIACOMUCCI

Details

AGLC: Regan v GIACOMUCCI [2002] WASC 222
Case: [2002] WASC 222
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an application to dismiss the plaintiff's action for want of prosecution against Benito Giacomucc and Kalgoorlie Taxi Car Drivers Association Inc. The plaintiff, Minda Romanillos Regan, commenced the action in January 1995 and it related to the removal of taxi plates in breach or repudiation of a lease agreement. The application was brought by the first and second defendants who sought leave to apply for summary judgment, judgment on admissions, and dismissal of the action for want of prosecution. The Acting Master Chapman considered the length of the delay, the explanation for the delay, the hardship to the plaintiff, and the prejudice to the defendants. The court found that the delay was inordinate and without adequate explanation, and that the prejudice to the defendants outweighed the hardship to the plaintiff. Therefore, the action was dismissed for want of prosecution.

The court refused to grant leave for the defendants to bring a summary judgment application, finding that the reasons put forward by the first defendant did not justify the delay of over a year and a half. The second defendant did not provide any affidavit evidence relating to the delay, and the application was therefore dismissed. The court also declined to give judgment on the admissions made by the plaintiff, finding that the true facts may be contrary to the admissions made. The court found that the delay was inordinate, as the matter should have been listed for trial within one year of the action having been commenced. The plaintiff's explanation for the delay was inadequate, and the court found that the defendants had not contributed to the delay. The court found that the plaintiff would suffer hardship if the action was dismissed, as any cause of action would now be statute-barred. However, the prejudice to the defendants outweighed the hardship to the plaintiff, as the delay would result in a deterioration of the quality of justice. The court found that an inference of serious prejudice could be drawn in relation to both defendants, given the nature of the case and the delay that had occurred. Therefore, the action was dismissed for want of prosecution against both defendants.

Orders