Ross v Cox - [2019] WASC 408

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ROSS -v- COX [2019] WASC 408
CORAM:   TOTTLE J
HEARD:   18 OCTOBER 2019
DELIVERED          :   18 OCTOBER 2019
PUBLISHED           :   8 NOVEMBER 2019
FILE NO/S:   CIV 2047 of 2016
BETWEEN:   ANTHONY RICHARD ROSS
First Plaintiff
JACQUELINE ROSS
Second Plaintiff
ROSS CONSULTANTS PTY LIMITED
Third Plaintiff
AND
PETER COX
Defendant

Catchwords:

Practice and procedure - Motions for judgment - Where defence struck out pursuant to order of court - Where plaintiff moves for judgment - Where allegations of fact uncontested

Legislation:

Australian Consumer Law (WA), s 4, s 18, s 236
Competition and Consumer Act 2010 (Cth), Sch 2
Fair Trading Act 2010 (WA), s 19
Rules of the Supreme Court 1971 (WA), O 41 r 1

Result:

Judgment entered against first defendant

Category: B

Representation:

Counsel:

First Plaintiff	:	S J Davis
Second Plaintiff	:	S J Davis
Third Plaintiff	:	S J Davis
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	MGD Law
Second Plaintiff	:	MGD Law
Third Plaintiff	:	MGD Law
Defendant	:	No appearance

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

Australian Competition and Consumer Commission v Valve Corp (No 3) [2016] FCA 196
Oskar v Bank of New South Wales [1984] WAR 262
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) [1993] FCA 430; (1993) 44 FCR 485
Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42

TOTTLE J:

Introduction

On 18 October 2019 I ordered that judgment be entered in favour of the first and third plaintiffs against the first defendant in respect of a number of the first and third plaintiffs' claims. One of the first plaintiff's claims was a claim for unliquidated damages and I assessed the damages in the amounts set out in these reasons. I gave brief oral reasons and said I would publish more detailed reasons. These are those reasons.
On 24 July 2019 I ordered that if the first defendant failed to provide discovery on affidavit by 30 August 2019 his defence would be struck out and the plaintiffs would have leave to apply for judgment against the first defendant.
Despite the first defendant's assurances, he did not file and serve an affidavit of discovery. The court has received no further communication from the first defendant and no documents have been filed by him.
On 12 September 2019 the plaintiffs filed a motion for judgment against the first defendant pursuant to O 41 r 1 of the Rules of the Supreme Court 1971 (WA). In so doing the plaintiffs followed the procedure outlined in Oskar v Bank of New South Wales.[1]
[1] Oskar v Bank of New South Wales [1984] WAR 262.

The parties

The first plaintiff is a former business associate of the first defendant. The first plaintiff is married to the second plaintiff. The third plaintiff is a company controlled by the first plaintiff through which he conducts a consultancy services business. When initiated this claim stood against…

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 Ross v Cox

Details

AGLC: Ross v Cox [2019] WASC 408
Case: [2019] WASC 408
Decision Date: 8 NOVEMBER 2019

CaseChat Overview and Summary

In the case of Ross v Cox, the matter was heard in the Supreme Court of Victoria. The dispute centred around the plaintiff, Ross, seeking judgment against the defendant, Cox, following the striking out of Cox's defence. Cox's defence was dismissed as a sanction for failing to comply with the court's directions and orders. The plaintiff subsequently moved for judgment based on the uncontested allegations of fact. The court was required to determine whether the plaintiff was entitled to judgment under these circumstances.

The primary legal issue before the court was whether the plaintiff could be granted judgment when the defendant's defence had been struck out and the allegations of fact were undisputed. This raised questions about the procedural fairness of allowing a plaintiff to obtain judgment in such a scenario, particularly when the defendant had not had the opportunity to contest the claims. The court also needed to consider the appropriate exercise of its discretion in deciding whether to grant the plaintiff's motion for judgment.

The court found that, given the defendant's failure to comply with the court's orders and the uncontested nature of the allegations, the plaintiff was entitled to judgment. The court emphasised the importance of following procedural rules and the consequences for parties who do not adhere to them. The court concluded that striking out the defence and granting judgment to the plaintiff was a fair outcome, considering the circumstances of the case. Consequently, the plaintiff's motion for judgment was allowed.

In conclusion, the court granted judgment to the plaintiff, Ross, following the striking out of the defendant, Cox's, defence. The court's decision was based on the uncontested allegations of fact and Cox's failure to comply with the court's orders. The plaintiff was entitled to judgment, and the court exercised its discretion to allow the motion for judgment.

Orders