Shepherd v Watt

The case of Shepherd v Watt involved an application for leave to appeal and an appeal from orders made by the primary judge dismissing an application for leave to file an amended cross-claim and to extend the time to file evidence. The applicants, Shepherd parties, sought to amend their cross-claim and extend the time to serve their outlines of evidence, citing reasons such as illness of key witnesses, insurance issues, and engagement of new counsel. The primary judge dismissed the application, finding that the Shepherd parties were not prosecuting the proceeding in an appropriately diligent manner and that the reasons provided for the delay were inadequate. The legal issues before the court were whether the primary judge's exercise of his discretion was within the scope of House v The King, whether the primary judge failed to give weight or sufficient weight to relevant considerations, and whether the exercise of discretion was unreasonable or plainly unjust.

The court found that the primary judge's decision was influenced by an error of law and failed to consider relevant factors in the exercise of discretion. The court emphasised the principle from House v The King that there is a strong presumption in favour of the correctness of the decision appealed from, and that it should be affirmed unless it is clearly wrong. The court found that the primary judge's decision did not take into account relevant considerations such as the timely, efficient, and cost-effective resolution of proceedings and potential prejudice to the parties. Additionally, the court found that the primary judge erred in his application of rule 5.23 of the Federal Court Rules 2011 (Cth) in the absence of any application by the respondents. The court also found that procedural fairness was not afforded to the applicants.

Accordingly, the court granted leave to appeal and allowed the appeal. The orders and declarations made by the primary judge on 20 May 2021, 23 July 2021, and 13 December 2021 were set aside. The matter was referred to the National Operations Registrar for reallocation to a judge in the Commercial and Corporations National Practice Area. The respondents were ordered to pay the applicants' costs of and incidental to the application for leave to appeal and the appeal.