Mann v Bankwest - a Division of Commonwealth Bank of Australia

[2020] WASCA 35

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Abuse of process
3. › Trial of preliminary issues after refusal of summary judgment
4. › Whether separate trial of discrete issues circumvented earlier refusal of summary judgment
5. › Whether unjustifiably oppressive or bringing administration of justice into disrepute
6. › Rules of the Supreme Court 1971 (WA), O 32 r 4
1. Practice and Procedure
2. › Amendment of pleadings
3. › Leave to amend
4. › Application to substitute entirely new defence during trial
5. › Whether refusal of leave involved House v The King error
6. › Relevance of case management principles
7. › Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 21 r 5
1. Appeal
2. › Interlocutory decisions
3. › Leave to appeal
4. › Standard of appellate review of discretionary case management decisions
5. › House v The King principles
6. › Added appellate restraint for practice and procedure decisions

Quick Take

A trial of preliminary issues under O 32 r 4 of the Rules of the Supreme Court 1971 (WA) is substantively different from summary judgment and does not constitute an abuse of process merely because an earlier summary judgment application was refused, as the trial of preliminary issues involves a final determination on the merits following cross-examination rather than a summary determination on affidavit evidence. An application to substitute an entirely new defence during the trial of preliminary issues may properly be refused where the application comes very late, outside the regime for amendment, and would necessitate an adjournment incompatible with case management principles.