Tait v Town of Mosman Park
[2004] WADC 9
•23 JANUARY 2004
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.
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