REILLY -v- DEVCON AUSTRALIA PTY LTD [2006] WASC 99
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 99 | |
| Case No: | SJA:1118/2005 | 29 MAY 2006 | |
| Coram: | MCKECHNIE J | 31/05/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to comply with programming orders by 7 June 2006 Liberty to apply | ||
| B | |||
| PDF Version |
| Parties: | PETER JOHN PATRICK REILLY DEVCON AUSTRALIA PTY LTD |
Catchwords: | Appeals practice and procedure Strike out for want of prosecution Principles when an appeal from an acquittal |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Procedure Rules 2005 (WA) |
Case References: | Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 Roddan v Gwilliam & Anor [2005] WASCA 209 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant (Respondent)
AND
DEVCON AUSTRALIA PTY LTD
Respondent (Appellant)
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R K BLACK
File No : PE 49364 of 2003, PE 49367 of 2003, PE 7593 of 2004, PE 7594 of 2004
Catchwords:
Appeals practice and procedure - Strike out for want of prosecution - Principles when an appeal from an acquittal
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Result:
Appellant to comply with programming orders by 7 June 2006
Liberty to apply
Category: B
Representation:
Counsel:
Appellant (Respondent) : Mr M A G Jenkin
Respondent (Appellant) : Mr P J McGowan
Solicitors:
Appellant (Respondent) : State Solicitor's Office
Respondent (Appellant) : Phillips Fox
Case(s) referred to in judgment(s):
Roddan v Gwilliam & Anor [2005] WASCA 209
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: Significant unexplained delay by the appellant has continued to the hearing of this application to dismiss the appeal for want of prosecution. Only by standing back and having a broad look at the justice of the case have I concluded, by the merest margin, that the appellant should be given one last short opportunity.
2 On 18 September 2002 a concrete tilt-up panel partially erected on a Myaree building site fell and killed Desmond John Kelsh. A year later the respondent was charged with breaches of the Occupational Safety and Health Act 1984 (WA). The matter proceeded to trial in August and September 2004 and May 2005, the trial occupying 22 days. On 19 October 2005 the Magistrate delivered a reserved decision dismissing the charges.
3 On 24 November 2005 I granted leave to appeal and made programming orders, one of which was:
"3. The appellant and the respondent to lodge and serve:
(a) written submissions
(b) chronology of events relevant to the appeal
(c) a printed list of the principal legal authorities on which the parties rely with…
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- Reilly v Devcon Australia Pty Ltd [2006] WASC 99
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- [2006] WASC 99
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CaseChat Overview and Summary
The court examined the principles for dismissing an appeal for want of prosecution, particularly focusing on the balance between the rights of the acquitted defendant to a prompt resolution of the appeal and the public interest in the authoritative determination of questions of law and fact in occupational health and safety prosecutions. The court noted that while the delay was significant and unexplained, it was not inordinate when compared to other cases. However, the court highlighted the importance of a prompt resolution for the acquitted defendant and the public interest in upholding Occupational Health and Safety laws.
Ultimately, the court decided that justice could be served without dismissing the appeal immediately. The court ordered the appellant to comply with the programming orders by 7 June 2006, with the condition that if the appellant failed to do so, the respondent could relist the application for dismissal before the court. The court also noted that it would hear from the parties regarding a revised timetable for further orders and the costs of the application.
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
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