SAKALIDIS & ANOR -v- AUSTRALIAN DIAMOND EXPLORATION NL [2003] WASC 258

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 258
Case No:	CIV:1777/1996	Heard:	19 NOVEMBER 2003
Coram:	MASTER NEWNES	Delivered:	18/12/03
No of pages:	17	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	GEORGE SAKALIDIS BARRINGTON DANCE AUSTRALIAN DIAMOND EXPLORATION NL
Catchwords:	Practice and procedure Application to strike out for want of prosecution Inordinate and inexcusable delay Prejudice Turns on own facts
Legislation:	Supreme Court Rules, O 1 r 4A, r 4B
Case References:	Birkett v James [1978] AC 297 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Duke v Royal Star Pty Ltd [2001] WASCA 273 Duke v Royalstar Pty Ltd [2001] WASCA 273 Hughes v Gales (1995) 14 WAR 434 Leyburd Nominees Pty Ltd v Coates Brown, unreported; FCt SCt of Vic; 12 September 1995 Putnin as official liquidator of Lombardo Ltd (In Liq) v Kane, unreported; SCt of WA (Master Sanderson); Library No 980454; 11 August 1998 Sangora Holdings Pty Ltd & Anor v Hodder & Anor [2003] WASCA 108 Spitfire Nominees Pty Ltd v Thompson & Hall [1999] VSC 12 State of Queensland v JL Holdings (1997) 189 CLR 146 Ulowski v Miller [1968] SASR 277 West Coast Clothing Co Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA; Library No 940482; 7 September 1994 Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 Arcadia Holdings Pty Ltd v Brown [2002] WASC 44 Brinkworth v The Commonwealth of Australia, unreported; SCt of WA; Library No 980357; 26 June 1998 Bristow Helicopters Ltd v Global Marine Drilling Co [1981] WAR 108 Brixton Nominees Pty Ltd v Hardiman [2002] WASC 3 Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998 Gould v Vaggelas (1985) 157 CLR 215 Helmy v SBF Engineering Pty Ltd [2001] WASC 241 Jennings Construction Ltd v McNulty [2000] WASCA 348 La Trobe Country Credit Co-operative Ltd v Smith [1999] 1 VR 440 Newman v Victoria, unreported; SCt of Vic (McDonald J); 25 August 1995 Paxton v Blenkinsop Nominees Pty Ltd [2002] WASC 93 Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72 R v Lawrence [1982] AC 510 Roebuck v Mungovin [1994] 2 AC 224 Stollznow v Calvert [1980] 2 NSWLR 749 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SAKALIDIS & ANOR -v- AUSTRALIAN DIAMOND EXPLORATION NL [2003] WASC 258 CORAM : MASTER NEWNES HEARD : 19 NOVEMBER 2003 DELIVERED : 18 DECEMBER 2003 FILE NO/S :

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: [2003] WASC 258
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia considered an application by the defendant, Australian Diamond Exploration NL, to strike out the plaintiffs' claim for want of prosecution. The plaintiffs, George Sakalidis and Barrington Dance, alleged that the defendant breached an agreement by failing to pay them $200,000 for the location of nickel deposits. The case had been dormant since 2003, with the last substantive step taken in 1996. The plaintiffs sought to adduce expert evidence and amend their writ and statement of claim to include two additional claims relating to nickel discoveries.

The court found that the delay in prosecuting the claim was inordinate and inexcusable due to the plaintiffs' inadequate explanation for the delay. The court rejected the plaintiffs' claim of financial hardship, noting their significant shareholdings in a publicly listed company and the managing director's substantial salary and bonuses. The court also found that the defendant had not demonstrated sufficient prejudice to warrant striking out the plaintiffs' claim. While the court acknowledged the potential for prejudice due to the passage of time and the death of a key witness, it found that the plaintiffs' claim was not solely dependent on oral evidence and that other witnesses remained available. The court concluded that the delay did not pose a substantial risk of a fair trial being impossible or causing serious prejudice to the defendant.

The court ultimately dismissed the defendant's application to strike out the plaintiffs' claim.

Orders