Spark v Rogers [No 3] - [2017] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SPARK -v- ROGERS [No 3] [2017] WADC 4

CORAM: PARRY DCJ

HEARD: 14 DECEMBER 2016

DELIVERED : 14 DECEMBER 2016

PUBLISHED : 9 JANUARY 2017

FILE NO/S: CIV 2835 of 2011

BETWEEN: JULIA DEBRA SPARK
Appellant
AND
MATTHEW BRUCE ROGERS
Respondent

Catchwords:

Appeal from registrar - Practice and procedure - Inactive cases list - Case placed on inactive cases list and dismissed for want of prosecution pursuant to r 44G(1) District Court Rules 2005 - Application to set aside dismissal pursuant to s 44G(5) District Court Rules 2005 - Whether exceptional circumstances - Evidence of psychiatric or psychological factors at time of failure to prosecute proceeding - Evidence presented on appeal but not at first instance - Nature of appeal

Legislation:

District Court Rules 2005 (WA) r 15(1), r 15(2), r 15(4a), r 15(6), r 44G(1), r 44G(5)

Result:

Appeal allowed
Decision of principal registrar set aside
Dismissal of proceeding for want of prosecution set aside
Action removed from inactive cases list

Representation:

Counsel:

Appellant: Mr R W Bower
Respondent: Mr R P Camm

Solicitors:

Appellant: Corser & Corser
Respondent: Camm & Associates

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

Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [2016] WADC 73
Spark v Rogers [2014] WADC 164
Spark v Rogers [No 2] [2016] WADC 121
The Owners of SP 13443, 129 ‑ 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133

PARRY DCJ: (This judgment was delivered extemporaneously on 14 December 2016 and edited from transcript).

Introduction

Ms Julia Spark seeks to appeal, pursuant to r 15(1) of the District Court Rules 2005 (DCR), from a decision of Principal Registrar Melville made on 18 August 2016.
In that decision, Principal Registrar Melville dismissed Ms Spark's application made under r 44G(5) DCR to set aside the dismissal of the proceeding that Ms Spark has brought against Mr Matthew Rogers under r 44G(1) DCR.
Rule 44G(1) DCR states as follows:
A case that is on the Inactive Cases list for 6 continuous months is taken to have been dismissed for want of prosecution.
Rule 44G(5) DCR states as follows:
The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
The principal registrar was not satisfied that exceptional circumstances existed and dismissed Ms Spark's application: see Spark v Rogers [No 2] [2016] WADC 121.
Rule 15(1) DCR confers a right of appeal to a judge upon a party who is 'dissatisfied with a decision of a registrar'. Rule 15(6) DCR states that 'the appeal is to be by way of a new hearing of the matter that was before the registrar'. In other words, an appeal under r 15 DCR involves a hearing de novo, that is, a fresh consideration of the matter that was before the registrar, or in this case the principal…

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 Spark v Rogers [No 3]

Details

AGLC: Spark v Rogers [No 3] [2017] WADC 4
Case: [2017] WADC 4
Decision Date: 9 JANUARY 2017

CaseChat Overview and Summary

In this case, the plaintiff, Spark, was the appellant and the defendant, Rogers, was the respondent. The dispute was about the dismissal of Spark's claim under rule 44G(1) of the District Court Rules 2005, which provides for the dismissal of inactive cases. Spark had filed a claim against Rogers, which was subsequently dismissed for want of prosecution. Spark applied to set aside the dismissal under section 44G(5) of the same rules, arguing that there were exceptional circumstances that justified the relief. The court was required to decide whether the circumstances presented by Spark constituted "exceptional circumstances" that warranted the setting aside of the dismissal.

The court considered whether the evidence presented by Spark regarding his psychiatric or psychological factors at the time of the failure to prosecute the proceeding could be taken into account in this appeal, despite the fact that this evidence was not presented at the first instance. The court held that the nature of the appeal was such that it could only consider the evidence that was before the registrar at the time of the dismissal, and that new evidence could not be introduced in this appeal. The court also noted that the evidence of psychiatric or psychological factors, even if accepted, did not necessarily constitute "exceptional circumstances" within the meaning of section 44G(5).

In light of the above, the court dismissed the appeal and upheld the dismissal of Spark's claim. The court held that the evidence of psychiatric or psychological factors, even if accepted, did not constitute "exceptional circumstances" within the meaning of section 44G(5) of the District Court Rules 2005. The court also held that new evidence could not be introduced in this appeal, and that the appeal was limited to the evidence that was before the registrar at the time of the dismissal. The court further held that the dismissal of the claim was justified, as there had been a significant delay in prosecuting the claim and no satisfactory explanation had been provided for the delay.

Orders