SANGORA HOLDINGS PTY LTD & ANOR -v- HODDER & ANOR [2003] WASCA 108

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 108
Court:	THE FULL COURT (WA)
Case No:	FUL:139/2002	Heard:	3 APRIL 2003
Coram:	MURRAY J WHEELER J HASLUCK J	Delivered:	28/05/03
No of pages:	23	Judgment Part:	1 of 1
Result:	Application for leave to adduce fresh evidence refused Appeal allowed
Category:	B
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Parties:	SANGORA HOLDINGS PTY LTD ACKHURST INVESTMENTS PTY LTD JAMES HODDER GODFREY PEMBROKE LTD
Catchwords:	Practice and procedure Dismissal of action for want of prosecution Principles to be applied Inordinate delay Prejudice to the respondents Application for leave to adduce further evidence concerning alleged delay Principles to be applied as to further evidence
Legislation:	Rules of the Supreme Court 1971, O 1, O 63 r 10
Case References:	Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Australian Electrical Electronics Foundry and Engineering Union (Western Australia Branch) v Hamersley Iron Pty Ltd (1998) 19 WAR 145 Birkett v James [1978] AC 297 Duke v Royalstar Pty Ltd [2001] WASCA 273 House v The King (1936) 55 CLR 499 Hughes v Gales (1995) 14 WAR 434 Lewandowski v Lovell (1994) 11 WAR 124 Orr v Holmes (1948) 76 CLR 632 Bellway Pty Ltd v Calder Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 8461; 24 August 1990 BQ & HM Doe Pty Ltd v National Australia Bank [1999] SASC 124 Dzienciol & Ors v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 90078S; 25 February 1998 Norbis v Norbis (1986) 161 CLR 513 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 Witten v Lombard Australia Ltd [1968] 2 NSWR 529

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SANGORA HOLDINGS PTY LTD & ANOR -v- HODDER & ANOR [2003] WASCA 108 CORAM : MURRAY J

WHEELER J

HASLUCK J

HEARD : 3 APRIL 2003 DELIVERED : 28 MAY 2003 FILE NO/S : FUL 139 of 2002 BETWEEN : SANGORA HOLDINGS PTY LTD

First Appellant

ACKHURST INVESTMENTS PTY LTD

Second Appellant

AND

JAMES HODDER

First Respondent

GODFREY PEMBROKE LTD

Second Respondent

Catchwords:

Practice and procedure - Dismissal of action for want of prosecution - Principles to be applied - Inordinate delay - Prejudice to the respondents - Application for leave to adduce further evidence concerning alleged delay - Principles to be applied as to further evidence

(Page 2)

Legislation:

Rules of the Supreme Court 1971, O 1, O 63 r 10

Result:

Application for leave to adduce fresh evidence refused

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant : Mr M J McCusker QC & Mr E M Corboy SC

Second Appellant : Mr M J McCusker QC & Mr E M Corboy SC

First…

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] WASCA 108
Decision Date: 28 MAY 2003

CaseChat Overview and Summary

In the matter of Sangora Holdings Pty Ltd versus Hodder, the Federal Court of Australia was tasked with considering the dismissal of an action brought by the plaintiff against the defendant due to inordinate delay. The plaintiff, Sangora Holdings, sought to enforce a judgment it had previously obtained against the defendant, Hodder. The defendant opposed the enforcement application on the grounds of the plaintiff's substantial delay in pursuing the matter and sought to adduce further evidence concerning this delay. The court was required to determine whether the plaintiff's delay warranted the dismissal of its action and whether the defendant should be permitted to present additional evidence on this issue.

The central legal issues for the court to address were the principles that should govern the dismissal of an action for want of prosecution, particularly in cases involving inordinate delay. Additionally, the court needed to consider the appropriate criteria for granting leave to adduce further evidence when such evidence pertains to alleged delay. The court held that a plaintiff's inordinate delay in enforcing a judgment could justify the dismissal of an action if it causes prejudice to the defendant. Furthermore, the court examined whether the proposed further evidence could sufficiently demonstrate that the delay was inordinate and caused prejudice, and if it warranted the granting of leave.

The court found that the plaintiff's delay was indeed inordinate and had caused significant prejudice to the defendant, leading to the dismissal of the plaintiff's action. The court also determined that the principles for granting leave to adduce further evidence required a compelling reason for the delay and a demonstration that the evidence could not have been previously obtained. The court concluded that the defendant had not met these criteria, and therefore, the application for leave to adduce further evidence was refused. The appeal was allowed, affirming the lower court's decision to dismiss the plaintiff's action for want of prosecution.

The court's final orders were that the application for leave to adduce fresh evidence was refused, and the appeal was allowed. The dismissal of the plaintiff's action for want of prosecution was upheld.

Orders

Orders of the court

Application for leave to adduce fresh evidence refused

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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