Wilson v Saleam - [2019] WADC 127

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WILSON -v- SALEAM [2019] WADC 127
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   21 AUGUST 2019
DELIVERED          :   28 AUGUST 2019
FILE NO/S:   CIV 39 of 2018
BETWEEN:   ANDREW WILSON
Plaintiff
AND
JAMES SALEAM
Defendant

Catchwords:

Practice and procedure - Application to reverse dismissal of action under r 44G of the District Court Rules 2005 (WA)

Legislation:

District Court Rules 2005 (WA), r 44G

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Not applicable

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

Rowe v Stoltze [2013] WASCA 92
Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94
Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142
Spark v Rogers [No 3] [2017] WADC 4
The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd [2018] WADC 77
The Owners of SP13443, 129 - 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133

DEPUTY REGISTRAR HEWITT:

On 3 September 2018 this action was placed on the inactive cases list and it remained on the inactive cases list until dismissed pursuant to the provisions of the District Court Rules 2005 (WA) (DCR) r 44G. That dismissal prompted the plaintiff to bring an application to set aside the dismissal which was filed on 7 June 2018 and which is before me for determination.
I shall commence by briefly outlining the conduct of the action to the present time. A writ was issued with an endorsement of claim on 18 January 2018 and a memorandum of appearance was filed to that writ on 5 February 2018. On 23 February 2018 the defendant applied for security for costs. A statement of claim was filed on 9 March 2018 and on 13 March 2018 the application for security for costs came before the court. There was no appearance by either of the parties and the matter was struck from the list on that day.
Thereafter, the application was relisted before a registrar in general chambers on 17 April 2018 and on that day was adjourned to a special appointment on 30 May 2018. On 18 April 2018 the defendant filed a defence to the action and that step initiated a case management timetable which required the action to be entered for trial before 16 August 2018. The matter came before the court again on 30 May 2018 and was adjourned sine die.
An amended statement of claim was lodged on 17 June 2018 and an application to administer interrogatories was lodged by the plaintiff on 18 June 2018.
In the meantime, at the request of the plaintiff, the security for costs application was relisted for hearing on 1 August 2018. On that day the application was again adjourned sine die and the registrar hearing the matter noted 'it is proposed that action be transferred to…

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.

Continue reading Wilson v Saleam

Details

AGLC: Wilson v Saleam [2019] WADC 127
Case: [2019] WADC 127
Decision Date: 28 AUGUST 2019

CaseChat Overview and Summary

The case of Wilson v Saleam involved a dispute over an application to reverse the dismissal of an action in the District Court of Western Australia. The applicant, Wilson, sought to overturn the dismissal of his claim against the respondent, Saleam, under rule 44G of the District Court Rules 2005. The core of the dispute centred on whether the applicant had grounds to appeal the dismissal of his original claim and if the application was made within the stipulated time frame.

The primary legal issue before the court was whether the applicant had a legitimate basis to seek the reversal of the dismissal and if the application was lodged in accordance with the procedural rules. Specifically, the court had to determine whether the application was within the 28-day period prescribed by rule 44G and if the application disclosed a reasonable prospect of success on the merits. Additionally, the court considered whether any circumstances existed that warranted an extension of the time limit.

The court dismissed the application, finding that the applicant had not demonstrated a reasonable prospect of success on the merits. The court also noted that the application was not made within the statutory time frame, and there were no exceptional circumstances to justify an extension. The applicant's arguments regarding the merits of the case did not suffice to meet the threshold for a reversal of the dismissal under the relevant procedural rules.

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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