TOLMAN HOLDINGS PTY LTD -v- LYRA & ORS [2005] WASC 260

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 260
Case No:	CIV:1426/2005	Heard:	25 OCTOBER 2005
Coram:	JENKINS J	Delivered:	25/11/05
No of pages:	17	Judgment Part:	1 of 1
Result:	Evidence of what was said at the pre-trial conference on 19 October 2004 in Local Court action No 20633 of 2003 is inadmissible in this matter
Category:	B
PDF Version

Parties:	TOLMAN HOLDINGS PTY LTD (ACN 009 125 731) GAVIN LYRA MICHELLE LYRA BUILDERS' REGISTRATION BOARD BUILDING DISPUTES TRIBUNAL
Catchwords:	Evidence Preliminary issue Admissibility of anything said at a pre-trial conference in the Local Court Whether the section prohibiting the admission of what occurred at a pre-trial conference saved by the repeal of the Local Courts Act Abuse of process
Legislation:	Courts Legislation Amendment and Repeal Act 2004 (WA), s 4, s 7 Interpretation Act 1984 (WA), s 37, s 37(c), s 37(d), s 37(1)(c), s 37(1)(d) Local Courts Act 1904 (WA), s 45B, s 45B(8), s 45B(9) Magistrates Court (Civil Proceedings) Act 2004 (WA) Magistrates Court (Civil Proceedings) Rules 2005 (WA), Pt IX, r 43(2) Magistrates Court Act 2004 (WA) Motor Car Act 1958 (Vic), s 80F Supreme Court Act 1935 (WA), s 71(1), s 71(3)
Case References:	R v Carroll [2002] 213 CLR 635 Sutton v Bradshaw [1988] VR 920 Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 Beswick v Beswick [1968] AC 58 Clarkson Booker Ltd v Andjel [1964] 2 QB 775 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Goldsmith v Sperrings Ltd [1977] 2 All ER 566 Harrison v Hocking [2000] WASC 188 Hay v Butler & Crooks (1991) 7 WAR 333 Jones v Bartlett (2000) 205 CLR 166 Morris v Wentworth-Stanley [1999] QB 1004 Neil & Ors v Nugent & Ors [2005] WASC 166 Reid v Howard (1995) 184 CLR 1 Spautz v Gibbs (1990) 21 NSWLR 230 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Wan v Sweetman (1998) 19 WAR 94 White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 Whitfords Beach Pty Ltd v Gadsdon (1992) 6 WAR 537 Williams v Spautz (1992) 174 CLR 509

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TOLMAN HOLDINGS PTY LTD -v- LYRA & ORS [2005] WASC 260 CORAM : JENKINS J HEARD : 25 OCTOBER 2005 DELIVERED : 25 NOVEMBER 2005 FILE NO/S : CIV 1426 of 2005 BETWEEN : TOLMAN HOLDINGS PTY LTD (ACN 009 125 731)

Plaintiff

AND

GAVIN LYRA

MICHELLE LYRA

First Defendants

BUILDERS' REGISTRATION BOARD

BUILDING DISPUTES TRIBUNAL

Second Defendants

Catchwords:

Evidence - Preliminary issue - Admissibility of anything said at a pre-trial conference in the Local Court - Whether the section prohibiting the admission of what occurred at a pre-trial conference saved by the repeal of the Local Courts Act - Abuse of process

(Page 2)

Legislation:

Courts Legislation Amendment and Repeal Act 2004

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: [2005] WASC 260
Decision Date

CaseChat Overview and Summary

The case of Tolman Holdings Pty Ltd v Lyra & Ors was heard by Jenkins J in the Supreme Court of Western Australia. The primary issue before the court was whether evidence of what transpired at a pre-trial conference in the Local Court could be admitted in a subsequent matter. The plaintiff, Tolman Holdings, sought to adduce evidence from the pre-trial conference to support its application for injunctions and declarations against the first and second defendants. The first defendants objected to the admissibility of this evidence, citing the prohibition on the admission of pre-trial conference proceedings in s 45B(8) of the repealed Local Courts Act 1904 (WA). Jenkins J found that despite the repeal of the Local Courts Act, the prohibition in s 45B(8) remained effective, preserving a right or privilege accrued prior to the repeal. The court also held that the prohibition was intended to apply to prevent parties from relying on what was said or done at a pre-trial conference to evidence a settlement in court, and that there was no inherent jurisdiction to admit such evidence to prevent an abuse of process. Consequently, the evidence of what was said at the pre-trial conference was deemed inadmissible.

Orders