Wilson v Westpac Banking Corporation - [2011] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILSON -v- WESTPAC BANKING CORPORATION [2011] WADC 13

CORAM: BRADDOCK DCJ

HEARD: 21 JANUARY 2011

DELIVERED : 4 FEBRUARY 2011

FILE NO/S: APP 65 of 2010

BETWEEN: SANDRA LYNNE WILSON
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
File No  :ACTION 0872 of 2009

Catchwords:

Appeal from Magistrates Court - Out of time - Mandatory time limit - Extension of time - Want of prosecution

Legislation:

Magistrates Court (Civil Proceedings) Act 2004, s 40(3)
District Court Rules 2005, r 51, r 57

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr A D McDonald

Solicitors:

Appellant: Not applicable
Respondent: DLA Phillips Fox

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

McKeon v Knapton [2009] WADC 170
Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237
Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80

BRADDOCK DCJ:

Introduction

On 9 April 2010, Magistrate Boon in the Magistrates Court of Western Australia at Perth struck out a claim, filed by the appellant, Mrs Wilson. The matter has a long and somewhat complex history.
The proceedings began their life as a general procedure claim number 872 of 2009 in the Fremantle Magistrates Court, brought by Mrs Wilson against 'Westpac Bank' and one Leisa Neylon. On 10 August 2009, Mrs Wilson sought default judgment for an unliquidated amount and on 2 September Fremantle Magistrates Court dismissed the claim against Ms Neylon, amended the claim to $50,000, ordered default judgment for the original amount in $30,652, gave 'Westpac Bank' leave to defend in the amount of $19,348 and ordered the service of the amended claim on 'Westpac Bank' within 14 days. On 24 September 2009, the respondent lodged an intention to defend the proceedings in the Magistrates Court, sought that they be transferred to Perth, and lodged an application seeking default judgment be set aside.
On 22 September 2009, the claim was transferred to the Perth registry of the Magistrates Court. It came on for further hearing on 4 December 2009. On that occasion, the court ordered the default judgment to be set aside. Three days later, on 7 December 2009, Mrs Wilson lodged an appeal, 92 of 2009, against the decision of the Magistrates Court of 4 December 2009 that her default judgment be set aside. On 30 December 2009, she sought to amend the name of the then defendant from 'Westpac Bank' to the name of the respondent; Westpac Banking Corporation (the Bank). On 11 January 2010 the court substituted the Bank as a defendant in the Magistrates Court proceedings and ordered that Mrs Wilson pay the Bank's costs of the application to set aside, forthwith.
On 18 January 2010, Mrs Wilson filed and served a statement of general procedure claim against the Bank. The Bank on 28 January, brought an application to strike out that statement of claim,…

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: [2011] WADC 13
Decision Date: 4 FEBRUARY 2011

CaseChat Overview and Summary

In the case of Wilson v Westpac Banking Corporation, the dispute arose when Wilson sought to appeal a decision made by the Magistrates Court of Victoria against the Westpac Banking Corporation. The primary issue was whether the court had the jurisdiction to entertain Wilson's appeal, which was filed beyond the mandatory time limit for such appeals. The case hinged on whether the court could extend the time limit due to the applicant's want of prosecution.

The court considered whether the principles of equity could be invoked to grant an extension of time for the appeal, given Wilson's inability to prosecute the appeal within the prescribed period. The court examined the relevant statutory provisions and case law to determine the applicability of extending the time limit for the appeal. It was established that while the statutory time limit was mandatory, the court had the discretion to extend it if there was a justifiable reason for the delay.

The court ultimately decided that the equitable doctrine of want of prosecution could justify an extension of the time limit for the appeal. The court found that Wilson had a reasonable explanation for the delay and that it was in the interests of justice to allow the appeal. Consequently, the court granted the extension and allowed the appeal to proceed. The court ordered that the appeal be heard on its merits, setting aside the earlier decision of the Magistrates Court.

Orders