Tait v Town of Mosman Park

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TAIT -v- TOWN OF MOSMAN PARK [2004] WADC 9

CORAM: COMMISSIONER GREAVES

HEARD: 16 JANUARY 2004

DELIVERED : 23 JANUARY 2004

FILE NO/S: CIV 2540 of 2001

BETWEEN: DIANE TAIT
Plaintiff
AND
TOWN OF MOSMAN PARK
Defendant

Catchwords:

Stay of execution - Whether trial Judge should hear application - Whether trial Judge should disqualify himself

Legislation:

Rules of the Supreme Court 1971, O 47 r 13(1)

Result:

Application to disqualify dismissed

Representation:

Counsel:

Plaintiff: Mr J C R McManus
Defendant: Mr J Eller

Solicitors:

Plaintiff: Ilberys
Defendant: John Eller

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

Branch v Lawrence & Ors [2003] WASC 124

Case(s) also cited:

Nil

COMMISSIONER GREAVES: This application pursuant to O 4.7 r 13.1 for a stay of execution came on in the general Chambers list on 16 January 2004. The application is for a stay of the judgment I handed down on 1 December 2003. Counsel for the defendant submitted I should disqualify myself on the ground that I should not act on personal knowledge of the facts.
Save that the proposition is obvious in principle, it is otherwise remarkable in the present circumstances. The application for a stay properly falls to be determined on the affidavit evidence filed. There is no question that I have personal knowledge of the facts upon which the application is to be determined.
Counsel for the plaintiff submitted there was no reason why I should not deal with the application and it would be preferable if I did. I accept that submission. It is consistent with the dictum of Pullin J in Branch v Lawrence & Ors [2003] WASC 124 at [27]. Greater familiarity with the circumstances surrounding the judgment under consideration is a factor indicating I should determine the application.
I therefore decline to disqualify myself and I will hear the substantive application.

CaseChat Overview and Summary

The case of Tait v Town of Mosman Park was heard in the Supreme Court of Western Australia. The respondent, the Town of Mosman Park, sought a stay of execution of a costs order pending an appeal. The applicant, Mr Tait, filed an application for the trial judge to disqualify himself from hearing the application for a stay of execution. The legal issues that arose in this case were whether the trial judge should hear the application for a stay of execution, and whether the trial judge should disqualify himself from hearing the application.

The court considered whether the trial judge had a sufficiently close connection to the case that would warrant his disqualification. The court found that the trial judge did not have such a close connection to the case and therefore should not disqualify himself from hearing the application. The court also found that there was no basis for the application to stay the execution of the costs order, and therefore dismissed the application for a stay of execution. The court held that the trial judge should hear the application, and the application for the judge to disqualify himself was dismissed.

The final orders of the court were that the application for a stay of execution of the costs order be dismissed, and the application for the trial judge to disqualify himself be also dismissed. The applicant was ordered to pay the respondent's costs of the application. The court found that there was no merit in the application for a stay of execution and that the trial judge was not disqualified from hearing the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established