WALTHAMSTOW PTY LTD & ORS -v- GIOVINAZZO [2003] WASC 249

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 249
Case No:	CIV:2554/2000	Heard:	2 DECEMBER 2003
Coram:	MASTER NEWNES	Delivered:	12/12/03
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
PDF Version

Parties:	WALTHAMSTOW PTY LTD (ACN 008 814 453) LANCE MASEL ELEY PALMER ARCHER (A FIRM) JAMES GIOVINAZZO
Catchwords:	Practice and procedure Appeal from decision of Case Management Registrar refusing defendant an extension of time Turns on own facts
Legislation:	Nil
Case References:	Magenta Nominees Pty Ltd v Bonini [1999] WASCA 249 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Bartholomew v Carter (1841) 3MG 124 Connelly v Director of Public Prosecutions (1964) AC 1254 Hughes v Gales (1995) 14 WAR 434 Inform Form Work Pty Ltd v McInnes Concrete Services Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995 Melville v East End Holdings Inc [2003] WASCA 133 Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WALTHAMSTOW PTY LTD & ORS -v- GIOVINAZZO [2003] WASC 249 CORAM : MASTER NEWNES HEARD : 2 DECEMBER 2003 DELIVERED : 12 DECEMBER 2003 FILE NO/S : CIV 2554 of 2000 BETWEEN : WALTHAMSTOW PTY LTD (ACN 008 814 453)

First Appellant (First Defendant)

LANCE MASEL

Second Appellant (Second Defendant)

ELEY PALMER ARCHER (A FIRM)

Third Appellant (Third Defendant)

AND

JAMES GIOVINAZZO

Respondent (Plaintiff)

Catchwords:

Practice and procedure - Appeal from decision of Case Management Registrar refusing defendant an extension of time - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant (First Defendant) : Mr P G Clifford

Second Appellant (Second Defendant) : Mr P G Clifford

Third Appellant (Third Defendant) : Mr P G Clifford

Respondent (Plaintiff) : Mr R J L McCormack

Solicitors:

First Appellant (First Defendant) : Eley Palmer

Second Appellant (Second Defendant) : Eley Palmer

Third Appellant (Third Defendant) : Eley Palmer

Respondent (Plaintiff) : Damien Brennan

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

Magenta Nominees Pty Ltd v Bonini [1999] WASCA 249
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

Bartholomew v Carter (1841) 3MG 124
Connelly v Director of Public Prosecutions (1964) AC 1254
Hughes v Gales (1995) 14 WAR 434
Inform Form Work Pty Ltd v McInnes Concrete Services Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995
Melville v East End Holdings Inc [2003] WASCA 133
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221

(Page 3)

1 MASTER NEWNES: This is an appeal by the defendants against an order of a Registrar of the Court made on 16 September 2003 by which the learned Registrar dismissed the defendants' application of 1 September 2003…

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: [2003] WASC 249
Decision Date

CaseChat Overview and Summary

The defendants appealed against an order of a Registrar of the Supreme Court, dismissing their application for an extension of time within which to file an application to amend their defences. The Registrar's order had the effect of enabling the plaintiff to enter judgment against the defendants. The defendants argued that the Registrar had not given sufficient regard to the prejudice which would be suffered by them if the extension were not granted. The plaintiff argued that the defendants had been persistently dilatory in taking steps in the action, and that they should not be allowed to proceed with the litigation. The Court found that, while the defendants' approach to time limits had been highly unsatisfactory, the plaintiff's record of non-compliance with case management orders was also poor. However, the greater fault lay with the defendants. Although their conduct was insufficient to justify the termination of their right to contest the plaintiff's claim, the Court was not satisfied that, at this stage, the consequences of refusing to extend the time by one day were justified. The Court allowed the appeal, set aside the Registrar's order, and extended the time within which the defendants were required to make an application to amend their defences to 27 August 2003. The Court also ordered that the defendants' solicitors pay the costs of the appeal.

Orders