SMITH & ANOR -v- McCUSKER QC [2001] WASCA 85

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 85
Court:	THE FULL COURT (WA)
Case No:	FUL:153/1997	Heard:	31 JANUARY 2001
Coram:	MALCOLM CJ OWEN J TEMPLEMAN J	Delivered:	6/04/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	JAMES GARNETT SMITH ELIZABETH ANNE SMITH MALCOLM JAMES McCUSKER QC
Catchwords:	Practice and procedure Appeal Application for recall of orders that have not been perfected or acted upon Move to set aside orders on ground that party was not given opportunity to be heard on relevant matters and that the reasons delivered by Full Court contained errors
Legislation:	Nil
Case References:	Smith & Anor v McCusker [2000] WASCA 320 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 David Syme & Co v Swinburne (1909) 10 CLR 43 Hoad v Nationwide News Pty Ltd (1997) 371 PR 407 Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 Norman v Norman (1992) 6 WAR 372 Smith v NSW Bar Association (1992) 176 CLR 256 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SMITH & ANOR -v- McCUSKER QC [2001] WASCA 85 CORAM : MALCOLM CJ

OWEN J

TEMPLEMAN J

HEARD : 31 JANUARY 2001 DELIVERED : 6 APRIL 2001 FILE NO/S : FUL 153 of 1997 BETWEEN : JAMES GARNETT SMITH

ELIZABETH ANNE SMITH

Appellants (Plaintiffs)

AND

MALCOLM JAMES McCUSKER QC

Respondent (Defendant)

Catchwords:

Practice and procedure - Appeal - Application for recall of orders that have not been perfected or acted upon - Move to set aside orders on ground that party was not given opportunity to be heard on relevant matters and that the reasons delivered by Full Court contained errors

Legislation:

Nil

(Page 2)

Result:

Application dismissed

Representation:

Counsel:

Appellants (Plaintiffs) : In person

Respondent (Defendant) : Mr C L Zelestis QC & Mr N K Stewart

Solicitors:

Appellants (Plaintiffs) : In person

Respondent (Defendant) : Pullinger Stewart

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

Smith & Anor v McCusker [2000] WASCA 320
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Case(s) also cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
David Syme & Co v Swinburne (1909) 10 CLR 43
Hoad v Nationwide News Pty Ltd (1997) 371 PR 407
Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357
Norman v Norman (1992) 6 WAR 372
Smith v NSW Bar Association (1992) 176 CLR 256
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29

(Page 3)

1 JUDGMENT OF THE COURT: On 30 October 2000 the Full Court delivered reasons for allowing, in part, an appeal from the decision of a Master who had ordered that the appellants' statement of claim against both respondents be struck…

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 Smith v McCusker QC

Details

AGLC: Smith v McCusker QC [2001] WASCA 85
Case: [2001] WASCA 85
Decision Date: 6 APRIL 2001

CaseChat Overview and Summary

The case of Smith v McCusker QC before the court involved a dispute over the recall of orders that had not yet been perfected or acted upon. The applicant sought to set aside these orders on the grounds that they had not been given the opportunity to be heard on relevant matters and that the reasons provided by the Full Court contained errors. The Full Court was asked to consider whether the application should be dismissed or if the orders should be recalled.

The central legal issues before the court were whether the application to recall the orders was valid and, if so, whether the grounds for recall were sufficient to warrant such action. The applicant argued that they had not been given a fair opportunity to be heard, and that the Full Court's reasons contained errors that needed to be rectified. The respondent contended that the application was not valid as the orders had not yet been perfected or acted upon, and that the grounds for recall were insufficient.

The court found that the application to recall the orders was not valid because the orders had not yet been perfected or acted upon. The court also found that the reasons provided by the Full Court did not contain any errors that would warrant setting aside the orders. The applicant's argument that they had not been given a fair opportunity to be heard was rejected as the court found that all relevant matters had been considered. As such, the application was dismissed and the orders remained in place.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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