JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: VUKMIROVIC -v- CW BRICKWORK PTY LTD [2024] WADC 65
CORAM: SEFTON DCJ
HEARD: 14 MAY 2024
DELIVERED : 9 AUGUST 2024
FILE NO/S: APP 68 of 2023
BETWEEN: PETER VUKMIROVIC
Appellant
AND
CW BRICKWORK PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SHACKLETON
File Number : JOO/GCLM/175/2023
Catchwords:
Appeal - Denial of procedural fairness - Application to set aside default judgment - Miscarriage of justice - Turns on own facts
Legislation:
District Court Rules 2005 (WA), r 50, r 51
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 19(2), s 19(3), s 40(1), s 40(4), s 40(5), s 43(3), s 43(4)(a), s 43(4)(b), s 43(7)
Result:
Default judgment set aside
Leave to defend proceedings granted
Representation:
Counsel:
| Appellant | : | Mr K S Pratt |
| Respondent | : | Mr B D Havilah |
Solicitors:
| Appellant | : | Rebus Legal |
| Respondent | : | Havilah Legal |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Defendi v Szigligeti [2019] WASCA 115
Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Marks v Coles Supermarkets [2021] WASCA 176
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806
Palmer v Prince [1980] WAR 61
Parker v Transfield Pty Ltd [2000] WASCA 382
Saunders v The Public Trustee [2015] WASCA 203
Smart v Power [2019] WASCA 106
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67
Vautier Holdings Pty Ltd v Kagioulis Trading Pty Ltd [2014] WASC 209
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
SEFTON DCJ:
Introduction
The appellant appeals[1] against a decision of a magistrate on 5 December 2023 by which his Honour dismissed the appellant's application[2] seeking that judgment in the matter be set aside and that he be given leave to defend the proceedings.[3]
[1] Appeal notice dated 11 December 2023.
[2] Matter Book, page 60 (MB).
[3] MB, page 78.
For the reasons that follow, I am satisfied that the appellant was denied procedural fairness and that it is appropriate that the appeal be allowed, the judgment be set aside and the appellant be given leave to defend the proceedings.
Background
Before considering the issues raised on appeal, it is convenient to set out certain aspects of the history of the Magistrates Court proceedings.
On 10 February 2023 the respondent lodged a general procedure claim in relation to…
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- Case
- [2024] WADC 65
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the defendant had demonstrated sufficient grounds for setting aside the default judgment, specifically focusing on whether the defendant had a bona fide defence to the plaintiff's claim and whether the defendant's delay in applying to set aside the judgment was unreasonable. Additionally, the court had to consider whether the defendant's failure to comply with procedural requirements, such as providing evidence or particulars, was justified under the circumstances.
The court found that the defendant had a viable defence to the plaintiff's claim, which was not apparent at the time of the default judgment. The court was satisfied that the defendant's delay in applying to set aside the judgment was not unreasonable given the circumstances and that the defendant had acted promptly once the defence was identified. The court held that the defendant's failure to provide evidence or particulars earlier was excusable due to the defendant's lack of awareness of the defence until later. Consequently, the court concluded that the defendant had demonstrated a miscarriage of justice and granted the application to set aside the default judgment.
The final orders of the court were that the default judgment previously entered against CW Brickwork Pty Ltd be set aside, and the matter be remitted to the Local Court for further proceedings in accordance with the relevant rules and procedures. The court emphasised that the setting aside of the judgment was not a reflection on the merits of the case but rather a recognition of the procedural fairness required in the judicial process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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