STEWART -v- MEEHAN & ORS [2006] WASC 244

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 244
Case No:	CIV:1726/2003	Heard:	30 OCTOBER 2006
Coram:	MASTER SANDERSON	Delivered:	3/11/06
No of pages:	4	Judgment Part:	1 of 1
Result:	Orders set aside
Category:	B
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Parties:	ANTHONY PAUL STEWART GRAHAM MEEHAN OMNILABS LTD SONETTI INVESTMENTS LTD
Catchwords:	Practice and procedure Application to set aside orders made on oral motion heard ex parte
Legislation:	Rules of the Supreme Court 1971 (WA), O 54, O 54 r 3(1), O 54 r 3(2), O 54 r 4, O 54 r 5(1)
Case References:	Cox v Mann [2006] WASC 125 Allesch v Maunz (2000) 74 ALJR 1206 Singh v Singh [2006] WASC 182 Taylor v Taylor (1979) 53 ALJR 629

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : STEWART -v- MEEHAN & ORS [2006] WASC 244 CORAM : MASTER SANDERSON HEARD : 30 OCTOBER 2006 DELIVERED : 3 NOVEMBER 2006 FILE NO/S : CIV 1726 of 2003 BETWEEN : ANTHONY PAUL STEWART

Plaintiff

AND

GRAHAM MEEHAN

First Defendant

OMNILABS LTD

Second Defendant

SONETTI INVESTMENTS LTD

Third Defendant

Catchwords:

Practice and procedure - Application to set aside orders made on oral motion heard ex parte

Legislation:

Rules of the Supreme Court 1971 (WA), O 54, O 54 r 3(1), O 54 r 3(2), O 54 r 4, O 54 r 5(1)

(Page 2)

Result:

Orders set aside

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Dr P R MacMillan

Second Defendant : Dr P R MacMillan

Third Defendant : Dr P R MacMillan

Solicitors:

Plaintiff : B W Duckham & Co

First Defendant : MacKinlays

Second Defendant : MacKinlays

Third Defendant : MacKinlays

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

Cox v Mann [2006] WASC 125

Case(s) also cited:

Allesch v Maunz (2000) 74 ALJR 1206
Singh v Singh [2006] WASC 182
Taylor v Taylor (1979) 53 ALJR 629

(Page 3)

1 MASTER SANDERSON: By application dated 12 August 2005, the plaintiff sought to amend his statement of claim. The matter came on for hearing on 15 February 2006. Orders were made requiring the filing of a minute of proposed amended statement of claim within 28 days. The matter was adjourned to 16 March 2006.

2 On 9 March 2006 the plaintiff's solicitors requested that the defendants' solicitors consent to an extension of time to file the amended pleadings. The defendants' solicitors responded immediately declining any extension. When the matter came before the Court on 16 March 2006, leave to amend in the terms of the minute of proposed statement of claim put forward was refused. The application was adjourned to 20 April 2006 to allow a new or substituted statement of claim to be filed.

3 On 19 April 2006 the defendants' solicitors forwarded to the plaintiff's solicitors an affidavit in support of an application for the plaintiff's claim to be struck out. There was no chamber summons or motion filed to ground this…

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 Stewart v Meehan

Details

AGLC: Stewart v Meehan [2006] WASC 244
Case: [2006] WASC 244
Decision Date

CaseChat Overview and Summary

In the matter of Stewart v Meehan, the plaintiff, Anthony Paul Stewart, sought to amend his statement of claim against the first defendant, Graham Meehan, the second defendant, Omnilabs Ltd, and the third defendant, Sonetti Investments Ltd. The case was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the orders made by Master Sanderson on 20 April 2006 could be set aside. The plaintiff had failed to comply with the orders made on 15 February 2006 to file an amended statement of claim within 28 days. The court had subsequently refused leave to amend and adjourned the application to 20 April 2006.

The legal issue the court needed to resolve was whether the orders made on 20 April 2006 could be set aside, given that the motion for judgment was not one that could properly be made ex parte, and thus, the defendants were required to give notice to the plaintiff of the motion. The court considered the application of Rule 54 and, in particular, Rule 54 r 3(1). The court determined that the order could be set aside as the motion for judgment was not properly made ex parte and notice was not given to the plaintiff two clear days before the motion was made as required by Rule 54 r 4. The court also found that the circumstances in this case warranted setting aside the perfected order, as there was no suggestion that the delay caused by giving notice would entail irreparable or serious mischief to the defendants.

Master Sanderson set aside the orders made on 20 April 2006 and extended the time within which the plaintiff could comply with the order to file a minute of proposed amended statement of claim. The court decided not to make an order that the minute stand as the statement of claim at that time, as counsel for the defendants had not had the chance to consider the proposed amended statement of claim in detail. The court also ruled that the plaintiff should bear the costs of the proceedings due to the difficulties caused by the omissions of the plaintiff or his solicitors.

Orders