Ward v DALGOLD Holdings Pty Ltd AFT the Gregson Family Trust
[2001] WASCA 404
•7 DECEMBER 2001
WARD & ANOR -v- DALGOLD HOLDINGS PTY LTD AFT THE GREGSON FAMILY TRUST & ORS [2001] WASCA 404
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 404 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2683/2001 | 7 DECEMBER 2001 | |
| Coram: | MURRAY J STEYTLER J OLSSON AUJ | 7/12/01 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | SAMUEL WARD MABLE WARD DALGOLD HOLDINGS PTY LTD AFT THE GREGSON FAMILY TRUST JEFF GREGSON ROSLYN GREGSON |
Catchwords: | Practice and procedure Leave sought to appeal against refusal of Judge to strike out part of statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Nil Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 Bruce v Odhams Press Ltd [1936] 1 KB 697 Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 Gold Coast City v Council Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504 Murchison Zinc Co Pty Ltd v Theiss Contractors Pty Ltd [2000] WASCA 167 Serrata Investments Pty Ltd v Rajane Pty Ltd (1991) 6 WAR 419 Smith v Littlemore (1996) 15 WAR 289 Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233 Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 York v Lucas (1985) 158 CLR 661 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WARD & ANOR -v- DALGOLD HOLDINGS PTY LTD AFT THE GREGSON FAMILY TRUST & ORS [2001] WASCA 404 CORAM : MURRAY J
- STEYTLER J
OLSSON AUJ
- MABLE WARD
Appellants (Second Defendants)
AND
DALGOLD HOLDINGS PTY LTD AFT THE GREGSON FAMILY TRUST
First Respondent (First Plaintiff)
JEFF GREGSON
ROSLYN GREGSON
Second Respondents (Second Plaintiffs)
Catchwords:
Practice and procedure - Leave sought to appeal against refusal of Judge to strike out part of statement of claim - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Appellants (Second Defendants) : Mr P W Van Der Zanden
Second Respondents (Second Plaintiffs) : Mr P D Quinlan
Solicitors:
Appellants (Second Defendants) : Minter Ellison
Second Respondents (Second Plaintiffs) : Arns & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250
Bruce v Odhams Press Ltd [1936] 1 KB 697
Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
Gold Coast City v Council Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504
Murchison Zinc Co Pty Ltd v Theiss Contractors Pty Ltd [2000] WASCA 167
Serrata Investments Pty Ltd v Rajane Pty Ltd (1991) 6 WAR 419
Smith v Littlemore (1996) 15 WAR 289
Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
York v Lucas (1985) 158 CLR 661
(Page 3)
1 MURRAY J: I am in entire agreement with the orders proposed by Steytler J that and with his Honour's reasons for that conclusion. It seems to me that I could have nothing to add to them and, indeed, nor to the reasons of her Honour Judge Deane in the District Court on the hearing of the application, which seem to me to be not only not attended by sufficient doubt to warrant the grant of leave but, as his Honour Steytler J put it, to be correct.
2 In addition, there are discretionary factors that, if it were necessary to rely upon them, would have persuaded me that in view of the timing of the matter no substantial injustice would be done by leaving the decision unreversed. I am of the view that the application should be refused.
3 STEYTLER J: This is an application for leave to appeal against the decision of a District Court Judge in declining to strike out paragraph 13 of the amended statement of claim. The proceedings the subject of the application are proceedings for misleading and deceptive conduct brought against the first and second defendants. The first defendants are pleaded to have made certain representations to the plaintiffs on behalf, inter alia, of the second defendants and these are set out in paragraph 7 of the statement of claim.
4 In paragraph 8 of the statement of claim it is pleaded that none of the defendants, prior to a material date, revealed other facts and matters. Then, in paragraph 13 of the statement of claim, the plaintiffs plead that at all material times the second defendants or each of them were involved in the conduct pleaded in paragraphs 7 and 8 in that they were persons directly or indirectly knowingly concerned in or a party to such conduct within the meaning of section 75B of the Fair Trading Act and/or section 68 of that Act.
5 The application to strike out was brought on the basis that paragraph 13 failed to disclose a cause of action against the second defendants who are now, of course, the applicants. Once the application was brought the plaintiffs or respondents provided further and better particulars of that paragraph. In those particulars they alleged actual knowledge on the part of the second defendants or each of them of the essential matters that make up the conduct pleaded in paragraphs 7 and 8 and they pleaded various matters from which that knowledge might be inferred.
6 The learned Judge in the proceedings below found that the delay in bringing the strike-out application, which was a delay of more than a year
(Page 4)
- from the time set by the rules, coupled with the fact that the particulars provided were generally adequate, even if they did provide material facts rather than particulars, was such as to justify the dismissal of the application to strike out.
7 It seems to me that she was entirely correct in arriving at that decision. While I would have no hesitation in agreeing with the proposition that paragraph 13 of the amended statement of claim as it originally stood was deficient, and while I have some sympathy with the contention that the particulars are still, in some respects, deficient, it seems to me that there is sufficient in the particulars, particularly having regard for the delay in bringing the strike-out application, to have justified the decision at which her Honour arrived. I would consequently refuse the application for leave to appeal.
8 OLSSON AUJ: I also agree. It seems to me that to the extent that there are residual deficiencies, there are simple processes at first instance which can be availed of to address them. I agree with the orders proposed.
0