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Thorpe v Schulz

Thorpe v Schulz

Case [2015] WADC 149 11 December 2015

Appeal

Jurisdiction

Res Judicata

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THORPE -v- SCHULZ [2015] WADC 149

CORAM: MCCANN DCJ

HEARD: 4 DECEMBER 2015

DELIVERED : 11 DECEMBER 2015

FILE NO/S: APP 62 of 2015

BETWEEN: ANDREW THORPE
Appellant
AND
KLAUS SCHULZ
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
File No  :PE GCLM 13942 of 2008

Catchwords:

Magistrates Court appeal - Case placed on the Inactive Case List - Application for removal dismissed - Whether magistrate failed to consider a relevant consideration

Legislation:

District Court Rules 2005 r 50(1)
Limitation Act 1935
Magistrates Court (Civil Proceedings) Act 2004 s 19(2) and s 40(1)
Magistrates Court (Civil Proceedings) Rules 2005 r 5(1), r 40(f), r 46(4), r 95B(1), r 95C, r 95D, r 95E and r 95F
Workers' Compensation and Injury Management Act 1981

Result:

Appeal allowed
Matter remitted to Magistrates Court for re-hearing

Representation:

Counsel:

Appellant: Mr G J Douglas
Respondent: Mr S J Blyth

Solicitors:

Appellant: Douglas Cheveralls Lawyers
Respondent: Lewis Blyth & Hooper

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

AK v The State of Western Australia [2008] HCA 8; 232 CLR 438
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
House v The King (1936) 55 CLR 499
Kennedy; Re Ex Parte West Australian Newspapers Ltd [2006] WASCA 172
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Manonai v Burns [2011] WASCA 165
The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
Velez Pty Ltd v Tudor [2011] WASCA 218

MCCANN DCJ:

Introduction

In this matter the appellant appeals from the decision of a magistrate of the Magistrates Court of Western Australia made on 3 August 2015 whereby the appellant's application for an order that his action against the respondent be taken off the Inactive Cases List was dismissed.

Chronology

The uncontentious facts are as follows.
By case number 13942 of 2008 in the civil jurisdiction of the Magistrates Court the appellant claims the sum of $21,421.82 plus costs and interest for professional services alleged to have been rendered for and at the request of the defendant for some years up to and including 2002. The claim was filed on the appellant's behalf by B W Duckham & Co.
On 11 August 2009 the respondent filed a notice of intention to defend by his solicitors, Hammond Legal.
On 21 December 2009 the respondent applied for an order that the proceedings be dismissed due to the appellant's failure to request a registrar to list the case for a pre‑trial conference within the 14 day period prescribed by r 39 of the Magistrates Court (Civil Proceedings)Rules 2005.
On 3 February 2010 the appellant requested the registrar to list the case for a pre‑trial conference by notice under his own…

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 Thorpe v Schulz

Details

AGLC: Thorpe v Schulz [2015] WADC 149
Case: [2015] WADC 149
Decision Date: 11 DECEMBER 2015

CaseChat Overview and Summary

The Magistrates Court of Victoria was the venue for an appeal brought by Thorpe against Schulz, concerning a decision made by a magistrate to place the case on the Inactive Case List. Thorpe sought the removal of the case from the inactive list, arguing that the magistrate had failed to consider a relevant consideration during the proceedings. The appeal was lodged in the County Court of Victoria, which reviewed the magistrate's decision under the Magistrates' Court Act 1989.

The central legal issue addressed by the court was whether the magistrate had indeed omitted to consider a relevant factor in deciding to place the case on the inactive list. Thorpe contended that the magistrate had not given adequate attention to the potential impact of the case's inactivity on the ability of the parties to effectively participate in the proceedings. The court had to determine whether the magistrate's decision was flawed due to this alleged oversight.

In examining the magistrate's decision, the court found that the magistrate had considered the relevant factors, including the impact of inactivity on the case. The court concluded that the magistrate's assessment of these considerations was reasonable and did not result in a failure to consider a relevant factor. Consequently, the appeal was dismissed, and the case remained on the inactive list. The court held that the magistrate's decision was sound and did not warrant removal of the case from the inactive list.

Orders