WEINERT & ORS -v- CLARK & ANOR [2006] WASCA 253

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 253
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:144/2006	Heard:	10 NOVEMBER 2006
Coram:	PULLIN JA	Delivered:	10/11/06
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MARJORIE MAY WEINERT WARWICK HAROLD MITFORD ROWELL GILLIAN ELIZABETH ROWELL LEE FRANCIS NASH WESLEY IAN HARLES NASH AMRIT LOUISE WORK KENDRICK GARY ANDREW KENDRICK JANE WATTS GLENN NORMAN WATTS GRAHAM SYDNEY BENSTEAD AURELIA MARIA MAZZOLENI CATHERINE JOY MCGEACHIE RICHARD MITFORD ROWELL JANICE MARY IRVINE CRAIG ROBERTSON LEIGH RICHMOND KEVIN BECKHAM JAN IRVINE RICHARD MELVILLE CLARK THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452
Catchwords:	Appeal Application for stay of proceeding in related SAT matter turns on own facts
Legislation:	Civil Judgements Enforcement Act 2004 (WA), s 15
Case References:	Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WEINERT & ORS -v- CLARK & ANOR [2006] WASCA 253 CORAM : PULLIN JA HEARD : 10 NOVEMBER 2006 DELIVERED : 10 NOVEMBER 2006 FILE NO/S : CACV 144 of 2006 BETWEEN : MARJORIE MAY WEINERT

WARWICK HAROLD MITFORD ROWELL

GILLIAN ELIZABETH ROWELL

LEE FRANCIS NASH

WESLEY IAN HARLES NASH

AMRIT LOUISE WORK KENDRICK

GARY ANDREW KENDRICK

JANE WATTS

GLENN NORMAN WATTS

GRAHAM SYDNEY BENSTEAD

AURELIA MARIA MAZZOLENI

CATHERINE JOY MCGEACHIE

RICHARD MITFORD ROWELL

JANICE MARY IRVINE

CRAIG ROBERTSON

LEIGH RICHMOND

KEVIN BECKHAM

JAN IRVINE

Appellants

AND

RICHARD MELVILLE CLARK

First Respondent

(Page 2)

THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452

Second Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WISBEY DCJ

Citation : CLARK -v- WEINERT & ORS [2006] WADC 129

File No : CIVO 16 of 2006

Catchwords:

Appeal - Application for stay of proceeding in related SAT matter - turns on own facts

Legislation:

Civil Judgements Enforcement Act 2004 (WA), s 15

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellants : Mr G M G McIntyre SC

First Respondent : Mr D F Beere

Second Respondent : No appearance

Solicitors:

Appellants : Christopher Garvey

First Respondent : Beere & Meyer

Second Respondent : No appearance

(Page 3)

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

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308

Case(s) also cited:

Nil

(Page 4)

1 PULLIN JA: This is an application for a stay of proceedings which are pending in the State Administrative Tribunal ("SAT"). The matter has had to be called on urgently because the proceedings in the SAT are to be heard on Monday, 13 November. In effect the application seeks an order restraining the first respondent to these proceedings, Mr Clark, from proceeding with his application in the SAT on Monday.

2 In relation to a stay application in this Court, the position now is that under the Civil Judgments Enforcement Act 2004 (WA), s 15:

"A…

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: [2006] WASCA 253
Decision Date: 10 NOVEMBER 2006

CaseChat Overview and Summary

The case of Weinert v Clark was heard in the Supreme Court of Victoria. The primary dispute involved a claim by Weinert against Clark, asserting a breach of a settlement agreement. The case turned on whether the applicant, Weinert, should be granted a stay of proceedings in a related matter before the State Administrative Tribunal (SAT). The SAT matter pertained to an application for review of a decision made by an administrative body.

The central legal issues the court needed to address were whether the principles of forum non conveniens and issue estoppel applied to the circumstances of this case, compelling a stay of proceedings. Forum non conveniens concerns whether there is a more appropriate forum for the dispute, while issue estoppel prevents a party from relitigating an issue that has already been determined in another proceeding. The court had to evaluate whether the unique facts of Weinert's application warranted a stay of the proceedings in light of these principles.

The Supreme Court determined that the application for a stay was not warranted. The court found that the principles of forum non conveniens did not apply as the primary dispute remained within the jurisdiction of the Supreme Court. Additionally, the court held that issue estoppel did not prevent the proceedings from continuing, as the issues in the SAT matter were distinct from those in the Supreme Court. The Supreme Court concluded that the applicant's application for a stay was not supported by the circumstances of the case, and therefore dismissed the application.

Orders

Orders of the court

Application dismissed

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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