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,…
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- Case
- [2011] WADC 13
- Decision Date
CaseChat Overview and Summary
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.
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