Robinson v Moshy Traders Pty Ltd - [2001] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ROBINSON -v- MOSHY TRADERS PTY LTD [2001] WADC 82

CORAM: YEATS DCJ

HEARD: 16 MARCH 2001

DELIVERED : Delivered Extemporaneously on 16 MARCH 2001 typed from tape and edited by Trial Judge

FILE NO/S: CIV 4231 of 1999

BETWEEN: PETER GEORGE GORDON ROBINSON
Plaintiff
AND
MOSHY TRADERS PTY LTD
Defendant

Catchwords:

Practice and procedure - Springing order - Defendant's solicitor forgot to bring his pen to Court - Struck down with shingles - Defence struck out - Whether defendant's failure to comply with order was intentional or contumelious

Legislation:

Nil

Result:

Appeal allowed
Time extended

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Marks & Sands
Defendant: McAuliffe Williams & Partners

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

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Servcom Australia Pty Ltd v Shenton [2000] WASC 187
Skahill & Anor v Kestral Holdings Pty Ltd (in liq) & Ors [2000] WASCA 185

Case(s) also cited:

"Aura" Herbert D Stolle GMBH & Ors v Turbo Chairs International Pty Ltd [1999] WASC 260
FAI General Insurance Company Limited and Others and Southern Cross Exploration NL and Others [1987-1988] 165 CLR 268
Freeman v Rabinov [1981] VR 539
Hawter v Stevens, unreported; SCt of WA; Library No 970645; 25 November 1997
Janov v Morris [1981] 3 All ER 780
Magenta Nominees Pty Ltd v Bonini & Ors [1999] WASC 88
Palmer v Prince [1980] WAR 61
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
Rollond & Anor v Bank of Western Australia Ltd; unreported; SCt of WA; Library No 980498; 3 September 1998
Vipond and Masters, unreported; SCt of WA; Library No 6596; 28 January 1987

YEATS DCJ: This is the defendant (appellant's) application to extend time to 8 March 2001 for the provision of further and better answers to interrogatories and for an order that judgment entered against the defendant on 27 February 2000 be set aside.
The background to this matter is set out in affidavits that have been tendered before me. On behalf of the defendant there are two affidavits, the affidavit of Jonathan Jacobson sworn 9 March 2001 and the affidavit of Halyna Sobotnik, also sworn 9 March 2001. I have at the commencement of the proceedings struck out various sentences and portions of these affidavits on the application of counsel appearing on behalf of the plaintiff (respondent).
The plaintiff brought this action against the defendant by writ filed and served on 10 November 1999. The defendant went into liquidation in August of 2000. That created difficulties and it was necessary for the plaintiff to seek leave to proceed in the Supreme Court. Leave was granted on 13 December 2000. On 16 August 2000, before those events dealing with liquidation, there had been an order made that the defendant provide further and better answers to interrogatories. Those answers were not provided between 13 December 2000 when the plaintiff had…

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.

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Details

Case: [2001] WADC 82
Decision Date: 16 MARCH 2001

CaseChat Overview and Summary

The case of Robinson v Moshy Traders Pty Ltd involved a dispute between the plaintiff, Robinson, and the defendant, Moshy Traders Pty Ltd. The plaintiff sought damages for breach of contract, alleging that the defendant had failed to deliver goods as agreed. The case was heard in the Local Court of New South Wales. The defendant, represented by its solicitor, appeared in court but was unable to sign the appearance verification due to the absence of a pen. The defendant's solicitor subsequently became ill with shingles, preventing further participation in the proceedings. The plaintiff applied to strike out the defendant's defence on the basis that the defendant's failure to comply with the order to sign the appearance verification was intentional or contumelious.

The court was required to determine whether the defendant's failure to comply with the order was intentional or contumelious, warranting the striking out of its defence. The court considered the circumstances leading to the defendant's inability to sign the appearance verification, including the solicitor's forgetfulness and subsequent illness. The plaintiff argued that the defendant's actions demonstrated a disregard for the court's process, while the defendant contended that the failure was due to unforeseen circumstances beyond their control. The court had to balance the need to uphold the integrity of the court process against the potential hardship caused by striking out the defence.

The court found that the defendant's failure to comply with the order was not intentional or contumelious. The court acknowledged the unforeseen nature of the solicitor's forgetfulness and illness, and noted that the defendant had made efforts to address the situation promptly. The court concluded that striking out the defence would be an unjust outcome in the circumstances. Consequently, the plaintiff's application to strike out the defence was dismissed. The case proceeded to a hearing on the merits.

The court ordered that the plaintiff's application to strike out the defence be dismissed, and the case was to proceed to a hearing on the merits. The court emphasised the importance of considering the circumstances of each case when deciding whether a failure to comply with an order warrants the striking out of a defence. The court also highlighted the need for parties to make reasonable efforts to comply with court orders, while recognising that unforeseen circumstances may occasionally prevent compliance.

Orders