Scolaro v Sebregts - [2000] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SCOLARO -v- SEBREGTS & ORS [2000] WADC 151

CORAM: MULLER DCJ

HEARD: 14 JUNE 2000

DELIVERED : 22 JUNE 2000

FILE NO/S: CIV 2291 of 1998

BETWEEN: RITA ROSA SCOLARO
Plaintiff/Respondent
AND
ALEXANDER SEBREGTS
First Defendant/Respondent
ELIZABETH SEBREGTS
Second Defendant/Respondent
SANDRA SMITH
Third Defendant/Respondent
DEAN SMITH
Fourth Defendant/Respondent
ELIANNE SMITH
Fifth Defendant/Respondent
KENNETH SMITH
Sixth Defendant/Respondent
INTERCOMM PTY LTD (ACN 077 553 612)
Seventh Defendant/Respondent
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Third Party

Catchwords:

Appeal from decision of Registrar refusing application to strike out third party statement of claim - Proceedings against third party commenced in both Supreme and District Courts - Whether duplication of proceedings involving same parties in two courts constitutes abuse of process - Third party statement of claim alleging tortious liability causing economic loss - Whether third party statement of claim discloses reasonable cause of action.

Legislation:

Rules of the Supreme Court, O 20, r 19

Trade Practices Act

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff/Respondent                 :    Mr S Forbes
First Defendant/Respondent      :    Mr N Friedman
Second Defendant/Respondent :    Mr N Friedman
Third Defendant/Respondent     :    Mr N Friedman
Fourth Defendant/Respondent    :    Mr N Friedman
Fifth Defendant/Respondent     :    Mr N Friedman
Sixth Defendant/Respondent     :    Mr N Friedman
Seventh Defendant/Respondent :    Mr N Friedman
Third Party  :    Mr P Blaxill

Solicitors:

Plaintiff/Respondent                 :    Paiker & Overmeire
First Defendant/Respondent      :    Friedman Lurie Singh
Second Defendant/Respondent :    Friedman Lurie Singh
Third Defendant/Respondent     :    Friedman Lurie Singh
Fourth Defendant/Respondent    :    Friedman Lurie Singh
Fifth Defendant/Respondent     :    Friedman Lurie Singh
Sixth Defendant/Respondent     :    Friedman Lurie Singh
Seventh Defendant/Respondent :    Friedman Lurie Singh
Third Party  :    Freehill Hollingdale & Page

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

Kimberley Downs Pty Ltd v Western Australia (1986), unreported; Library No 6414; 28 August 1986
Moore v Inglis (1976) 9 ALR 509
Perre v Apand 164 ALR 606
Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225

Case(s) also cited:

Batten v CTMS Ltd, unreported; Fed C of A; QG 177 of 1998; 12 November 1999
Ilinka Ilievska-Dieva v SGIO Insurance Ltd; Velenski v SGIO Insurance Ltd, unreported; FCt SCt of WA; [2000] WASCA 161

MULLER DCJ: This is an appeal by the third party against the decision of the Registrar made on 21 February 2000 ordering that par 21 of the third party statement of claim be struck out and declining to order that the balance of the third party statement of claim be struck out. The third party now seeks the third party statement of claim to be struck out in its entirety pursuant to O 20, r 19 of the Rules of the Supreme Court on the grounds that it discloses no reasonable cause of action and/or is frivolous or vexatious and/or is an abuse of the process of the Court.

Background to the appeal

In October 1997 the third party entered into an agreement with a company named Vision Telecommunications Pty Ltd (Vision) in terms of which the…

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: [2000] WADC 151
Decision Date: 22 JUNE 2000

CaseChat Overview and Summary

In the case of Scolaro v Sebregts, the parties involved were Scolaro, the appellant, and Sebregts, the respondent. The nature of the dispute was an appeal against a decision by the Registrar, who had refused to strike out a third party statement of claim. The proceedings against the third party were initiated in both the Supreme and District Courts, raising questions about the duplication of proceedings involving the same parties in two courts. The central legal issue was whether this duplication constituted an abuse of process. Additionally, the court had to determine whether the third party statement of claim, which alleged tortious liability causing economic loss, disclosed a reasonable cause of action.

The court examined the legal principles surrounding the duplication of proceedings and the concept of abuse of process. It considered the potential for prejudice to the parties and the efficient use of judicial resources. The court also assessed the merits of the third party statement of claim, focusing on whether it disclosed a reasonable cause of action. The court determined that the duplication of proceedings did not constitute an abuse of process, as there were no grounds to suggest that the proceedings in the District Court were commenced in bad faith or for an improper purpose. Furthermore, the court found that the third party statement of claim did disclose a reasonable cause of action, as it set out a plausible set of facts that, if proven, could result in liability.

Following the court's reasoning, it was held that the appeal against the Registrar's decision was unsuccessful. The duplication of proceedings did not amount to an abuse of process, and the third party statement of claim did disclose a reasonable cause of action. Consequently, the application to strike out the third party statement of claim was denied. The court's decision confirmed the ongoing validity of the proceedings in both the Supreme and District Courts.

Orders