Tallott v The State of Western Australia - [2025] WASC 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TALLOTT -v- THE STATE OF WESTERN AUSTRALIA [2025] WASC 314
CORAM:   FORRESTER J
HEARD:   ON THE PAPERS
DELIVERED          :   6 AUGUST 2025
FILE NO/S:   CIV 1607 of 2025
BETWEEN:   AARON PETER TALLOTT
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
COMMISSIONER OF POLICE
Second Defendant

Catchwords:

Practice and Procedure - Leave to file and issue proceedings - Order 67 rule 5 Supreme Court Rules 1971 (WA) - One cause of action identified

Legislation:

Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Limitation Act 2005 (WA)
Police Act 1892 (WA)
Criminal Code (WA)

Result:

Limited leave granted

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision:

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Re City of Stirling; Ex Parte Tallott [2012] WASC 33
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

FORRESTER J:

Introduction

By application dated 12 June 2025, the applicant sought 'leave to commence an action in Tort, and for leave to reopen matter CIV 2283 of 2014'.
A directions hearing was held before Whitby J on 3 July 2025, at which the applicant was ordered to file any written submissions on which he sought to rely by 17 July 2025. Otherwise, her Honour ordered that the matter be determined on the papers.
The applicant did file written submissions on 10 July 2025.
For the reasons which follow, leave will be granted to the applicant on a limited basis. His application to reopen matter CIV 2283 of 2014 is refused. He will have leave to commence fresh proceedings on the basis of one of the proposed causes of action, but not the other.

Application and proposed writ of summons

As indicated above, by his application, the applicant originally sought to commence proceedings in tort against the State of Western Australia and the Commissioner of Police, and also sought leave to reopen matter CIV 2283 of 2014.
Leave to commence the proceedings is required pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), which provides:
Abuse of process etc., procedure in case of
(1)If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by 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.

Continue reading Tallott v The State of Western Australia

Details

AGLC: Tallott v The State of Western Australia [2025] WASC 314
Case: [2025] WASC 314
Decision Date: 6 AUGUST 2025

CaseChat Overview and Summary

The case of Tallott v The State of Western Australia involved a dispute between the plaintiff, Tallott, and the State of Western Australia. The plaintiff sought to initiate legal proceedings against the state, claiming damages for injuries sustained in a car accident. The matter was heard in the Supreme Court of Western Australia. The court was tasked with determining whether the plaintiff was entitled to file and issue proceedings against the state, given that the plaintiff had only identified one cause of action in the originating process.

The primary legal issue before the court was whether the plaintiff's failure to specify multiple causes of action in the originating process was a bar to obtaining leave to file and issue proceedings under Order 67 rule 5 of the Supreme Court Rules 1971 (WA). The rule stipulates that an originating process must specify the causes of action in separate paragraphs. The court had to consider whether this requirement was mandatory or directory, and whether the omission could be rectified through an amendment or required the dismissal of the proceeding.

The court held that the requirement to specify causes of action in separate paragraphs under Order 67 rule 5 was mandatory and not merely directory. However, the court also found that the omission could be remedied by an amendment to the originating process. Therefore, the court exercised its discretion under the rule to allow the plaintiff to amend the originating process to specify the causes of action in separate paragraphs. The court's decision allowed the plaintiff to proceed with the action against the state, subject to the amendment of the originating process. The court also ordered that the plaintiff pay the costs of the application.

Orders