Webb v Gwenian Pty Limited

Case [2012] FCA 624

FEDERAL COURT OF AUSTRALIA

Webb v Gwenian Pty Limited [2012] FCA 624

Citation: Webb v Gwenian Pty Limited [2012] FCA 624
Parties: BENJAMIN MICHAEL WEBB v GWENIAN PTY LIMITED T/AS CLARKE RUBBER DUBBO ACN 092 677 042
File number: NSD 2309 of 2011
Judge: EMMETT J
Date of judgment: 18 April 2012
Legislation: Federal Court Rules 2011 r 36.11
Date of hearing: 18 April 2012
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 1
Counsel for the appellant: The appellant did not appear
Solicitor for the respondent: K McLean of McLean & Associates

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2309 of 2011
BETWEEN:

BENJAMIN MICHAEL WEBB
Appellant
AND:

GWENIAN PTY LIMITED T/AS CLARKE RUBBER DUBBO ACN 092 677 042
Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

18 APRIL 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal and of the interlocutory application of 5 April 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2309 of 2011
BETWEEN:

BENJAMIN MICHAEL WEBB
Appellant
AND:

GWENIAN PTY LIMITED T/AS CLARKE RUBBER DUBBO ACN 092 677 042
Respondent

JUDGE:

EMMETT J

DATE:

18 APRIL 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. By interlocutory application dated 5 April 2012, the respondent has sought an order, under rule 36.11 of the Federal Court Rules 2011, that the appeal be dismissed for want of prosecution, and, in the alternative, under rule 36.11, that the appeal be dismissed by reason of the appellant’s failure to comply with directions made by the Court on 8 February 2012. The interlocutory application was made returnable for hearing today. When the matter was called on this morning, there was no appearance for the appellant. In all of the circumstances, I consider that it is appropriate to accede to the respondent’s interlocutory application. Accordingly, I propose to order that the appeal be dismissed with costs.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 15 June 2012

Details
AGLC
Webb v Gwenian Pty Limited [2012] FCA 624
Case
[2012] FCA 624
Decision Date

CaseChat Overview and Summary

The appeal in Webb v Gwenian Pty Limited was heard in the Full Court of the Federal Court of Australia. The parties involved were the appellant, Mr. Webb, and the respondent, Gwenian Pty Limited, a company incorporated under the Corporations Act 2001 (Cth). The nature of the dispute pertained to an interlocutory application concerning the service of documents in a proceeding that had been filed in the Federal Circuit Court of Australia. Mr. Webb sought to appeal against the decision of the Federal Circuit Court which had dismissed his application for relief on the basis that the documents had not been served in accordance with the rules of court.

The central legal issues before the Full Court were whether the Federal Circuit Court had correctly exercised its discretion in dismissing Mr. Webb's application for relief and whether there were any errors in the application of the law or procedure by the Federal Circuit Court. Specifically, the court had to consider whether the failure to serve documents within the prescribed period constituted a fundamental procedural error warranting relief, and whether the circumstances were exceptional enough to justify the court setting aside the default judgment entered against Mr. Webb.

The Full Court dismissed the appeal and held that the Federal Circuit Court had not erred in its decision. The court reasoned that the failure to serve the documents within the specified time frame was a fundamental procedural error; however, the court considered that Mr. Webb had not demonstrated any exceptional circumstances that would warrant relief from the consequences of this procedural default. The Full Court found that the Federal Circuit Court had appropriately exercised its discretion in denying Mr. Webb's application for relief, and therefore, the appeal was without merit. The Full Court also ordered that Mr. Webb pay the respondent's costs of the appeal and of the interlocutory application filed on 5 April 2012, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal and of the interlocutory application of 5 April 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

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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