Strzelecki Holdings Pty Ltd v Jorgensen - [2013] WADC 121

STRZELECKI HOLDINGS PTY LTD -v- JORGENSEN [2013] WADC 121

Last Update: 01/08/2013

STRZELECKI HOLDINGS PTY LTD -v- JORGENSEN [2013] WADC 121
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 121
Case No:	CIV:1811/2011	Heard:	19 JUNE 2013
Coram:	STAUDE DCJ	Delivered:	26/07/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	17	Judgment Part:	1 of 1
Result:	Appeal allowed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	STRZELECKI HOLDINGS PTY LTD STEPHEN LAURENCE JORGENSEN ROBYN MIRIEL JORGENSEN
Catchwords:	Procedure Dismissal of inactive case pursuant to r 44G of the District Court Rules 2005 Whether standard timetable as varied by order of deputy registrar applicable Whether filing of a Form 1 (entry for trial) by a plaintiff while a case is on the inactive cases list has the effect of taking the case off the list Whether an order for dismissal can be made where rules operate automatically Whether filing of Form 1 can amount to an abuse of process
Legislation:	District Court Rules 2005 Rules of the Supreme Court 1971
Case References:	Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 Ruby v Doric Constructions [2013] WASCA 94 Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : STRZELECKI HOLDINGS PTY LTD -v- JORGENSEN [2013] WADC 121 CORAM : STAUDE DCJ HEARD : 19 JUNE 2013 DELIVERED : 26 JULY 2013 FILE NO/S : CIV 1811 of 2011 BETWEEN : STRZELECKI HOLDINGS PTY LTD

Plaintiff

AND

STEPHEN LAURENCE JORGENSEN

ROBYN MIRIEL JORGENSEN

Defendants

Catchwords:

Procedure - Dismissal of inactive case pursuant to r 44G of the District Court Rules 2005 - Whether standard timetable as varied by order of deputy registrar applicable - Whether filing of a Form 1 (entry for trial) by a plaintiff while a case is on the inactive cases list has the effect of taking the case off the list - Whether an order for dismissal can be made where rules operate automatically - Whether filing of Form 1 can amount to an abuse of process

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971

(Page 2)

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff : Mr G J Douglas

Defendants : Mr N Dillon

Solicitors:

Plaintiff : Hotchkin Hanly Lawyers

Defendants : Murcia Pestell Hillard

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

Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Ruby v Doric Constructions [2013] WASCA 94
Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27

(Page 3)

STAUDE DCJ

Introduction

1 This appeal by the plaintiff is by way of a new hearing of an application by the defendants by chamber summons dated 20 September 2012 for an order dismissing the proceedings herein pursuant to the District Court Rules 2005 r 44G(1) and ancillary orders pursuant to r 44G(4).

2 On 29 November 2012 the learned registrar ordered:

1. The plaintiff's action having been on 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: [2013] WADC 121
Decision Date: 26 JULY 2013

CaseChat Overview and Summary

In the case of Strzelecki Holdings Pty Ltd v Jorgensen, the parties were involved in a legal dispute that was eventually brought before the court. The nature of the dispute pertained to the procedural aspects of case management within the District Court, specifically regarding the dismissal of an inactive case under rule 44G of the District Court Rules 2005. The court was tasked with determining whether the standard timetable, as varied by a deputy registrar's order, was applicable in the circumstances. Additionally, the court needed to decide if the filing of a Form 1 (entry for trial) by the plaintiff, while the case was on the inactive cases list, had the effect of removing the case from that list. Another issue before the court was whether an order for dismissal could be made when the rules operated automatically, and if the filing of Form 1 could be considered an abuse of process.

The court carefully considered these legal issues, examining the rules and their implications on the procedural aspects of case management. It concluded that the standard timetable as varied by the deputy registrar's order was applicable to the circumstances of the case. The court found that the filing of a Form 1 by the plaintiff while the case was on the inactive cases list did not have the effect of removing the case from that list. The court also held that an order for dismissal could be made where the rules operated automatically, and that the filing of Form 1 did not amount to an abuse of process. Based on these findings, the court allowed the appeal, resulting in the dismissal of the inactive case.

Orders

Orders of the court

Appeal allowed

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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