Roddan v Gwilliam

Case [2005] WASCA 209

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RODDAN -v- GWILLIAM & ANOR [2005] WASCA 209

CORAM:   STEYTLER P

SIMMONDS AJA

HEARD:   7 OCTOBER 2005

DELIVERED          :   7 OCTOBER 2005

PUBLISHED           :  10 NOVEMBER 2005

FILE NO/S:   FUL 23 of 2003

BETWEEN:   LINDSAY GORDON RODDAN

Appellant

AND

EDWARD CLAYTON GWILLIAM
First Respondent

PAUL STEFAN SCHUBERT
Second Respondent

Catchwords:

Practice and procedure - Dismissal for want of prosecution - Principles guiding exercise of inherent jurisdiction to dismiss an appeal - Whether inordinate or inexcusable delay by appellant - Whether justice of the case requires appeal to be dismissed - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed for want of prosecution

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr G J O'Hara

Second Respondent      :     Mr G J O'Hara

Solicitors:

Appellant:     In person

First Respondent           :     Kott Gunning

Second Respondent      :     Kott Gunning

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

Bride v Peat Marwick Mitchell (1989) WAR 383

Gallo v Dawson (1990) 93 ALR 479

Girando v Girando (1997) 18 WAR 450

Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93

Hughes v Gales (1995) 14 WAR 434

Jackamarra v Krakouer (1998) 195 CLR 516

Jakovljevic v Doslov [2000] WASCA 131

Muto v Faul [1980] VR 26

Noye v Gwilliam & Anor [2002] WASC 227

Roddan v The Queen [2005] WASCA 87

Stollznow v Calvert [1980] 2 NSWLR 749

Case(s) also cited:

Duke v Royalstar Pty Ltd [2001] WASCA 273

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Faulkner v Bluett (1981) 52 FLR 115

Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648

James v London & South Western Railway Co (1872) LR7 Exch 287

Latrobe Country Credit Co-operative Ltd v Smith [1999] 1 VR 440

Lewandowski v Lovell (1994) 11 WAR 124

Russell v Duke of Norfolk [1949] 1 All ER 109

Walton v Gardiner (1993) 177 CLR 378

  1. JUDGMENT OF THE COURT: 

Introduction

  1. This is an application to dismiss an appeal for want of prosecution.  The appeal was brought by the appellant, Lindsay Gordon Roddan, against the striking out of his action against the respondents, Edward Clayton Gwilliam and Paul Stefan Schubert, serving police officers.  At the hearing of the application to dismiss the appeal for want of prosecution, we granted the application.  These are our reasons.

  2. It is first necessary that we provide background concerning Mr Roddan's action and the decision against which he appealed.  We then set out the events subsequent to the commencement of that appeal, before considering the approach that should be adopted to consideration of applications for dismissal of appeals for want of a prosecution.  We then apply that approach to this case.

The appellant's action

The action in respect of which a Master of this Court made the decision appealed against (Noye v Gwilliam & Anor [2002] WASC 227) was a consolidation of two actions, Roddan v Schubert, CIV 1812…

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Details
AGLC
Roddan v Gwilliam [2005] WASCA 209
Case
[2005] WASCA 209
Decision Date

CaseChat Overview and Summary

Lindsay Gordon Roddan appealed against the striking out of his action against Edward Clayton Gwilliam and Paul Stefan Schubert, both serving police officers. The appeal was dismissed for want of prosecution. The court granted the application to dismiss the appeal due to the appellant's inordinate and inexcusable delay in prosecuting the appeal. The court held that the delay was not justified and that the justice of the case required the appeal to be dismissed.

The court considered the principles guiding the exercise of its inherent jurisdiction to dismiss an appeal for want of prosecution. The court held that the delay must be considered in light of the appellant's conduct and the circumstances of the case. The court held that the appellant's delay was inordinate and inexcusable and that the justice of the case required the appeal to be dismissed. The court held that the appellant's delay had caused prejudice to the respondents and that the delay was not justified. The court held that the appellant had not shown any good cause for the delay and that the delay was not excusable.

The court held that the appellant's delay was inordinate and inexcusable and that the justice of the case required the appeal to be dismissed. The court held that the appellant had not shown any good cause for the delay and that the delay was not excusable. The court held that the appellant's delay had caused prejudice to the respondents and that the delay was not justified. The court held that the appellant had not shown any good cause for the delay and that the delay was not excusable.

The final orders of the court were that the appeal be dismissed with costs.

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

JUDGMENT OF THE COURT: This is an application to dismiss an appeal for want of prosecution. The appeal was brought by the appellant, Lindsay Gordon Roddan, against the striking out of his action against the respondents, Edward Clayton Gwilliam and Paul Stefan Schubert, serving police officers. At the hearing of the application to dismiss the appeal for want of prosecution, we granted the application. These are our reasons. It is first necessary that we provide background concerning Mr Roddan's action and the decision against which he appealed. We then set out the events subsequent to the commencement of that appeal, before considering the approach that should be adopted to consideration of applications for dismissal of appeals for want of a prosecution. We then apply that approach to this case. That document identifies a range of causes of action. Some of these directly concern the appellant, alone. These are allegations of the fraudulent procurement of search warrants and subsequent action taken on premises occupied by the appellant involving his property, an allegation of conversion of an item of the appellant's property, and allegations of two conspiracies, one to prevent the appellant maintaining and pursuing an action by a named corporation, and the other to present evidence in bail applications involving the appellant. There was also one cause of action concerning only the plaintiff Noye, a police officer. This related to the instigation, by the first respondent, Gwilliam, of police internal disciplinary charges against Noye. There were also causes of action concerning both Noye and the appellant. These alleged the malicious instigation of criminal proceedings against them as well as misfeasance by the first respondent, Gwilliam, alone, in the discharge of his duties as a serving police officer. The decision appealed against was made on 26 September 2002, on an application filed by the respondents on 27 March 2002 and amended by leave on 6 June 2002. The nature of the application, as amended, sufficiently appears from the decision of the learned Master at [1]), as follows:" ... In its amended form the defendants sought by par 1(a) through to (d) to strike out the statement of claim because it did not disclose a cause of action, or alternatively, because it was not a proper pleading. By par 1(e) the defendants sought to have the action dismissed for want of prosecution. By par 1(f) the defendants sought to strike out the claim on the grounds that:'Any right of action against either or both Defendants which the Second Plaintiff [the appellant] acquired during the period 20 January 1992 to 22 July 1997 vested in the Second Plaintiff's trustee in bankruptcy, the Second Plaintiff having been bankrupt from 22 January 1992 to 22 July 1997.' " In the event, the learned Master concluded that he would strike out the appellant's action against the respondents and enter judgment for them on the basis asserted in par 1(f) of the respondent’s application. The final orders to give effect to this decision were made on 5 February 2003. The orders deconsolidated CIV 1849 of 1999 and CIV 1812 of 1999. The action of the appellant in CIV 1812 of 1999 was dismissed, as was his action in CIV 1849 of 1999. Noye was given leave to file a further amended statement of claim within 21 days, presumably in CIV 1849 of 1999, the only one of the two actions to which he had been a party.

Ratio Decidendi

Legal Principle Established

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