Allen v Western Power Corporation

[2010] WADC 104

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ALLEN -v- WESTERN POWER CORPORATION & ANOR [2010] WADC 104

CORAM:   DERRICK DCJ

HEARD:   25 JUNE 2010

DELIVERED          :   16 JULY 2010

FILE NO/S:   CIV 3119 of 2008

BETWEEN:   STEPHEN THOMAS ALLEN

Plaintiff

AND

WESTERN POWER CORPORATION
First Defendant

ELECTRICITY NETWORKS CORPORATION
Second Defendant

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :Deputy Registrar Harman

File No  :CIV 3119 of 2008

Catchwords:

Practice and procedure - Appeal against decision of Deputy Registrar - Application to extend time for the making of an application under r 45(3) of the District Court Rules 2005 - Whether District Court has power to extend time for the making of an application under r 45(3) - Principles to be applied in determining application to extend time for the making of an application under r 45(3) - Principles to be applied in determining an application under r 45(3) - Application for leave to amend statement of claim

Legislation:

District Court Rules 2005 (WA), rr 6(1), 6(2), 6(3), 15(1), 24(1), 30(1), 38(1), 38(2), 38(5), 44(1), 44(2), 45(1), 45(2), 45(3), 45(4), 45(5), 46
Electricity Corporation Act 2005 (WA), s 147(1)
Limitation Act 1935 (WA), s 38(1)(c)
Rules of the Supreme Court 1971 (WA), O 1 rr 4A, 4B, O 3 rr 5(1), 5(2), 5(3), O 20 r 1, O 29A rr 16, 17, 18, 19, 20, 21, O 36A r 2(3), O 63A rr 3(1), 5(2), 7(1), O 64, O 65A

Result:

Appeal dismissed

Application to extend time for making of application under r 45(3) of the District Court Rules 2005 (WA) allowed

Application under r 45(3) of District Court Rules 2005 (WA) allowed

Application for leave to amend statement of claim allowed

Representation:

Counsel:

Plaintiff:     Mr L Gandini

First Defendant            :     No appearance

Second Defendant        :     Mr P J Hannan

Solicitors:

Plaintiff:     Chapmans

First Defendant            :     Not applicable

Second Defendant        :     Williams Ellison Pty Ltd

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

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194

Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

Greenmount Constructions Pty Ltd v Diploma Construction Pty Ltd [2009] WADC 107

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90

Lawrence Business Management Pty Ltd v Famlonga [2006] WADC 25

Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86

Love v Griffiths [2008] WASC 168

MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49

Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24

Ward v Keet [No 3] [2010] WASC 71

1. DERRICK DCJ: The second defendant appeals against the decisions made by Deputy Registrar Harman on two chamber summonses both of which came before him for hearing on 9 April 2010. The appeal is made pursuant to r 15(1) of the District Court Rules 2005 (WA) ("the DCR").

   I also have before me for determination a chamber summons filed by the plaintiff seeking leave to amend his statement of claim.

Background

1. On 11 December 2008 the plaintiff commenced an action against the first defendant and the second defendant.  The action was commenced by a writ of summons endorsed with a statement of claim.

2. The first defendant no longer exists. On 1 April 2006 the second defendant assumed the first defendant's assets and liabilities by virtue of a transfer order made under s 147(1) of the Electricity Corporations Act 2005 (WA). Accordingly, the only active defendant in the action is the second defendant.

3. In his statement of claim the plaintiff alleges that in or about May to July 2002 he entered into an oral agreement ("the agreement") with his employer the first defendant.  He alleges that the material terms of the agreement, "made over several conversations and/or emails with Mary‑Jo Duffy of the first defendant", were that he was to finalise his workers' compensation claim relating to an injury that he suffered on 18 December 1998 and "that as a result of, and after cessation of his workers' compensation payments, he was to be offered by the first defendant a redundancy payment of approximately $90,000 ('the agreed redundancy payment')".  He alleges that he ceased his workers' compensation claim in or about mid October 2002 and that the first defendant and/or the second defendant, in breach of the agreement, did not on the cessation of his payments pay to him the agreed redundancy payment.  He claims damages in the sum of not less than $90,000 for the alleged breach of the agreement.

4. On 18 December 2008 the second defendant entered an appearance to the action and filed its defence. In its defence the second defendant pleads that the limitation period for the plaintiff's action expired prior to 11 December 2008 and that the plaintiff's claim is therefore barred by virtue of s 38(1)(c) of the Limitation Act1935 (WA). The second defendant also denies the existence of the agreement.

5. On 19 December 2008 the Court, in accordance with r 30(1) of the DCR, sent a case management timetable ("the timetable") to the parties.  Under the timetable the plaintiff's case was to be entered for trial by 17 April 2009.

6. On 23 January 2009 the case came before a Registrar for directions.  At the directions hearing the Registrar gave the plaintiff leave to apply on 14 days notice to amend his statement of claim in order to address the second defendant's limitation defence.

7. Later on 23 January 2009 the second defendant's solicitors wrote to the plaintiff's solicitors.  In their letter the second defendant's solicitors stated that it appeared to them from the plaintiff's letter of resignation given to the second defendant on 27 June 2003 (a copy of which they enclosed), that the plaintiff "did not put his 'redundancy' at more than a chance, certainly not an agreement, as is now pleaded".  The second defendant's solicitors also stated in their letter that they had reviewed the second defendant's rehabilitation file for the plaintiff and other than the plaintiff's letter of resignation there was no mention in the file of a redundancy until after the plaintiff had raised the issue in May 2004.  The second defendant's solicitors invited the plaintiff's solicitors to view the file by way of "informal discovery/inspection".  The second defendant's solicitors concluded their letter by stating that the letter was written in the hope of an early and inexpensive resolution of the plaintiff's action.

8. The plaintiff's solicitors did not take up the invitation of the second defendant's solicitors to inspect the second defendant's rehabilitation file.

9. On 18 February 2009 the second defendant's solicitors sent a letter to the plaintiff's solicitors.  In their letter the second defendant's solicitors informed the plaintiff's solicitors that they intended to apply to the Court to strike out the statement of claim on the basis that as pleaded the plaintiff's cause of action expired before the writ of summons was issued.

10. On 6 March 2009 the plaintiff's solicitors sent a letter to the second defendant's solicitors.  In their letter the plaintiff's solicitors stated that they were still taking instructions with respect to the issues raised by the second defendant's solicitors and asked if they could be given "a few more days for that to occur".  They also asked the second defendant's solicitors to "hold off with any application at this point in time".

11. On 14 April 2009 the plaintiff's solicitors sent a letter to the second defendant's solicitors in response to the second defendant's solicitors' letter dated 18 February 2009.  In their letter the plaintiff's solicitors stated:

    "Our client says that the breach referred to in paragraph 8 of his statement of claim occurred at or about the time his employment with the defendant ceased in July 2003.  We believe this is clear from the balance of the particulars, however, if necessary, a further particular will be added to paragraph 8 to specifically clarify this matter."

12. On 20 April 2009 the Court issued, pursuant to r 38(1) of the DCR, a Form 2 (Notice of default (entry for trial)) ("the Form 2 Notice of Default"). By the Form 2 Notice of Default the Court informed the parties that the plaintiff had not entered the action for trial as required by the timetable and that unless the plaintiff entered the action for trial on or before 5 May 2009 the action would become inactive. Consistently with r 38(2) and r 38(5) of the DCR the Form 2 Notice of Default also contained a statement that despite the fact that the action would become inactive if the plaintiff did not enter the action for trial on or before 5 May 2009, any party other than the plaintiff could now enter the action for trial and could do so even if the action had become inactive.

13. The plaintiff did not enter the action for trial on or before 5 May 2009.

14. On 12 August 2009 the plaintiff's solicitors served the second defendant's solicitors with the plaintiff's informal list of discoverable documents.

15. On 19 November 2009 the plaintiff's solicitors sent the second defendant's solicitors a letter requesting informal discovery.

16. On 12 February 2010 the plaintiff's solicitors filed the plaintiff's schedule of damages.

17. On 19 February 2010 the plaintiff's solicitors filed a chamber summons under r 45(3) of the DCR.  By the chamber summons the plaintiff sought orders that he have leave to make an application to remove the action from the inactive list, that the action be removed from the inactive list and that leave be given to enter the case for trial by 31 March 2010.

18. On 24 February 2010 the second defendant's solicitors filed a chamber summons. By the chamber summons the second defendant sought an order that the plaintiff's action against the second defendant be dismissed and that there be judgment in favour of the second defendant pursuant to r 45(4) of the DCR.  The grounds for the application were stated to be that the plaintiff had, contrary to the Form 2 Notice of Default, failed to enter the action for trial by 5 May 2009.

19. On 13 March 2010 the chamber summonses filed by the plaintiff and the second defendant on 19 February 2010 and 24 February 2010 respectively came before a Registrar.  The summonses were adjourned to a special appointment on 9 April 2010.

20. At 10.45 am on 9 April 2010 the plaintiff's solicitors served on the second defendant's solicitors an affidavit sworn by a Mr Glenn Ferguson earlier on that day.  Mr Ferguson was at the time of swearing the affidavit a paralegal employed by the plaintiff's solicitors.  In the affidavit Mr Ferguson stated, among other things, that as at 5 May 2009 neither the first defendant nor the second defendant had served their lists of documents, that to enter a matter for trial a plaintiff must certify certain things including that discovery and inspection has occurred, and that since 5 May 2009 it had not been possible for the plaintiff to enter the action for trial without the Court's leave.

21. At 2.15 pm on 9 April 2010 the chamber summonses filed by the plaintiff and the second defendant on 19 February 2010 and 24 February 2010 respectively came before Deputy Registrar Harman for determination.  In response to the plaintiff's chamber summons the Deputy Registrar made the following orders:

    1.The plaintiff have leave to make the application;

    2.The action be removed from the inactive list;

    3.The second defendant provide an informal list of documents within 14 days;

    4.Any application to amend the statement of claim be made within 21 days;

    5.The plaintiff have leave to enter the case for trial by 21 May 2010; and

    6.The plaintiff pay the second defendant's costs in any event.

22. As to the second defendant's chamber summons the Deputy Registrar made an order dismissing the summons.  He made no order as to costs.

23. On 14 April 2010 the second defendant filed the notice of appeal that is before me.  By the notice of appeal the second defendant appeals against:

    1.The whole of the decision made by the Deputy Registrar on the plaintiff's chamber summons filed on 19 February 2010 save for the costs order; and

    2.The whole of the decision made by the Deputy Registrar on the second defendant's chamber summons filed on 24 February 2010.

24. On 19 April 2010 the plaintiff's solicitors sent the second defendant's solicitors a letter to which was attached a minute of proposed re‑amended statement of claim.

25. On 21 April 2010 the plaintiff filed a chamber summons with a minute of proposed amended statement of claim ("the minute") attached.  By the summons the plaintiff sought the following orders:

    1.The plaintiff have leave to amend the statement of claim in accordance with the minute;

    2.The costs of the application be in the cause; and

    3.The application be otherwise adjourned sine die.

26. The minute revealed that the plaintiff proposed to amend his statement of claim so as to allege that under the agreement the agreed redundancy payment was payable "on termination of his employment in 2003" and further that on cessation of his employment in July 2003 the first defendant, in breach of the agreement, did not pay the agreed redundancy payment.

27. On 13 May 2010 the plaintiff's chamber summons filed on 21 April 2010 came before a Registrar.  The Registrar made orders in terms of the summons.

28. On 25 May 2010 the notice of appeal came before a Registrar at a directions hearing.  The Registrar made orders setting aside the orders made on 13 May 2010 and directed that the summons be heard by the Judge hearing the appeal the subject of the notice of appeal.  It is for this reason that the summons in addition to the notice of appeal is now before me.

Approach to determination of the issues

1. If I allow the second defendant's appeal there will be no need for me to deal with the plaintiff's chamber summons filed on 21 April 2010.  I will therefore deal with the appeal first and then, if necessary, deal with the chamber summons filed on 21 April 2010.

The appeal

The affidavit evidence on the appeal

1. I have referred above to the affidavit sworn by Mr Ferguson.  The balance of the affidavit evidence that is before me on the appeal consists of an affidavit sworn by Mr Richard Barsden on 14 April 2010, an affidavit sworn by Ms Mary‑Jo Duffy on 28 May 2010 and an affidavit sworn by the plaintiff on 23 June 2010.  Mr Barsden is the solicitor from the second defendant's solicitors who has the conduct of the action.  Ms Duffy was at all material times an employee of the second defendant who was given responsibility for overseeing the plaintiff's rehabilitation following his accident on 18 December 1998.

The orders sought by the second defendant on the appeal

1. By the notice of appeal the second defendant seeks the following orders on the appeal against the decision of the Deputy Registrar on the plaintiff's chambers summons filed on 19 February 2010:

   1.The appeal be allowed;

   2.The orders made by the Deputy Registrar on the summons on 9 April 2010, save for the order that the plaintiff pay the defendants costs in any event, be set aside and in lieu thereof the chamber summons be dismissed; and

   3.The plaintiff pay the second defendant's costs of the appeal.

2. As to the appeal against the decision of the Deputy Registrar on the second defendant's chamber summons filed on 24 February 2010 the second defendant seeks the following orders:

   1.The appeal be allowed;

   2.The orders made by the Deputy Registrar on 9 April 2010 be set aside;

   3.The plaintiff's action against the second defendant be dismissed and there be judgment in favour of the second defendant pursuant to r 45(4) of the DCR;

   4.The plaintiff do pay the second defendant's costs of the action to be taxed if not agreed; and

   5.The plaintiff pay the second defendant's cost of the appeal.

The rules relevant to the appeal

1. It is at this point convenient to refer in more detail to the rules contained in the DCR which are of particular relevance to the issues raised by the appeal.

2. Rule 44(1) of the DCR provides that if a r 38 Form 2 is sent in relation to a case the plaintiff must, on or before the date specified in the form (which must be at least 14 days after the date of the form), enter the case for trial.  Rule 44(2) provides that if a plaintiff does not obey a Form 2 the case becomes inactive.

3. Rule 45(1) provides that r 45 applies if a case is inactive under r 44(2).

4. Rule 45(2) provides that if a case is inactive under r 44(2) the plaintiff must not file a Form 1 to list the case for trial or any other document (other than an application under r 45(3)) without the leave of the Court.

5. Rule 45(3) provides that within 21 days after the date specified in a Form 2, the plaintiff must apply for leave to list the case for trial or to be excused from doing so.

6. Rule 45(4) provides that if:

   (a)no application is made under subrule (3); or

   (b)on an application under subrule (3) leave is refused or the plaintiff is not excused,

   a party that is not in default may apply for judgment in that party's favour to be entered without a trial.

7. Rule 45(5) provides that if the Court grants leave on an application made under subrule (3) and is satisfied that there is no reason for the case to be inactive it must order that that case is no longer inactive.

8. In this case the plaintiff, as I have already indicated, did not comply with the Form 2 Notice of Default.  He did not enter the case for trial by 5 May 2009.  The action therefore became inactive from 6 May 2009.

9. After the case became inactive the plaintiff did not, pursuant to r 45(3), make an application within 21 days of 5 May 2009 for leave to list the case for trial or to be excused from doing so. Accordingly, from the expiration of the 21 day period onwards the second defendant, being the party that was not in default under r 45(3), could have applied for judgment to be entered in its favour without trial pursuant to r 45(4). However, the second defendant did not make any such application until 24 February 2010, that is, five days after the plaintiff had made its application by summons for an order removing the action from the inactive list. Clearly, the filing of the plaintiff's chamber summons prompted the second defendant into action.

Nature of the appeal

1. An appeal from the decision of a Registrar to a Judge under r 15(1) of the DCR is a hearing de novo: r 15(6); Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28. I am therefore to treat the chamber summonses the subject of the appeal afresh as though they have not previously been determined. It is not necessary for the second defendant to establish appellable error on the part of the Registrar: Hazart v Rademaker (supra) at 28; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] HCA 47 at [13] and [14]; (2000) 203 CLR 194 at 203 and 204.

The second defendant's submissions in support of the appeal - summary

1. The parties agree that if I uphold the second defendant's appeal against the Deputy Registrar's decision on the plaintiff's chamber summons filed on 19 February 2010, I will also necessarily uphold the appeal against the Deputy Registrar's decision on the second defendant's chamber summons filed on 24 February 2010.  They also agree that if I dismiss the appeal against the Deputy Registrar's decision on the plaintiff's chamber summons, I will necessarily dismiss the appeal against the Deputy Registrar's decision on the second defendant's chamber summons.

2. The second defendant's submissions in support of its appeal against the decision of the Deputy Registrar on the plaintiff's chamber summons filed on 19 February 2010 can be summarised as follows.  First, it is submitted that the plaintiff's chamber summons was incompetent because it was filed outside the 21 day period provided for by r 45(3) in circumstances where the Court does not have power to grant an extension of time within which to file such an application.  Secondly, it is submitted that if the Court does have power to extend beyond the 21 day period the time for the filing of an application under r 45(3), the plaintiff has not provided sufficient reason for the granting of an extension in the present case.  Finally, it is submitted that the plaintiff has, in any event, not made out its application for orders that the action is no longer inactive and granting leave to enter the case for trial.  I will deal with each of these submissions in turn.

Alleged incompetence of plaintiff's chamber summons

1. There is no rule in the DCR which empowers the Court to extend the time for the bringing of an application under r 45(3). The issue, therefore, is whether by virtue of r 6 of the DCR the general power contained in O 3 r 5(1) and r 5(2) of the Rules of the Supreme Court ("the RSC") applies to r 45(3) of the DCR with the consequence that the Court does have the power to extend the time for the making of an application under that rule beyond the stipulated 21 day period.

2. Order 3 r 5(1) of the RSC provides that that the Supreme Court may on such terms as it thinks just by order extend the period within which a person is required by the RSC to do any act in the proceedings. Order 3 r 5(2) provides that the Supreme Court may extend any period referred to in O 3 r 5(1), although the application for extension is not made until after the expiration of that period.

3. Rule 6(1) and r 6(2) of the DCR relevantly provide that the RSC apply to and in respect of any case in the Court and that a reference in the RSC to "the Court" is to be taken as being a reference to the District Court. Rule 6(3) provides that if there is a conflict or inconsistency between the DCR and the RSC the DCR prevail.

4. So far as I am aware the issue of whether the Court does have the power to extend the time for the making of an application under r 45(3) of the DCR has not been considered by a Judge of this Court.  Certainly, the parties did not refer me to any decision of a Judge of this Court which is on point.  I note, however, that in Lawrence Business Management Pty Ltd v Famlonga [2006] WADC 25 at [4] a Deputy Registrar of this Court appeared to accept, albeit in the absence of any argument on the issue, that O 3, r 5(1) and r 5(2) of the RSC did provide the Court with the power to extend the time for the making of an application under r 45(3).

5. The second defendant submits that the plain intent of r 44 and r 45 of the DCR is to create a "self‑contained code". It submits that r 45(3) provides a plaintiff, who has failed to comply with a Form 2 direction to enter the case for trial, with a 21 day "window of opportunity" within which the plaintiff can attempt to remedy the consequences of their inaction and that if they fail to avail themselves of that opportunity "the guillotine comes down". It submits that the mandatory nature of the instruction given to the plaintiff by r 45(3) (that is, that the plaintiff "must" make the application) is by implication in conflict or inconsistent with O 3 r 5(1) of the RSC and that consequently the general power to extend time contained in that rule is not applicable to applications under r 45(3).  It seeks to derive considerable support for this submission from the decision of Owen J in Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552. It submits that given the inapplicability of O 3 r 5(1) the plaintiff was not permitted to make its application the subject of the chamber summons filed on 19 February 2010 and that consequently it should have been dismissed by the Deputy Registrar as incompetent.

6. The plaintiff submits that there is no conflict or inconsistency, express or implied, between r 45(3) of the DCR on the one hand and O 3, r 5(1) and r 5(2) of the RSC on the other. The plaintiff further submits that the second defendant's suggested interpretation of r 45(3) does not accord with what must have been the intention of the drafters of the DCR because the consequence of this interpretation is that a plaintiff, who fails to make an application under r 45(3) within the specified 21 day period, is prevented from doing anything further in the action notwithstanding that r 45(4) does not impose any obligation on the party that is not in default to apply for judgment in that party's favour to be entered without trial. In other words the effect of r 45(3), if the second defendant's suggested interpretation is correct, is that the case can at the whim of the party not in default be left languishing for an indefinite period.

7. Before turning to r 45(3) it is convenient to make further reference to Eaton Developments v NTC (supra). In that case the rule under consideration was O 63A r 5(2) of the RSC. Order 63A r 5(2) provided that the appeal "shall be entered for hearing within seven days after the directions hearing and if not so entered, shall be taken to have been discontinued". Order 63A r 5(2), like r 45(3), did not contain an express power for the court to extend the time limit specified in the rule. However, the appellant submitted that the general power to extend time contained in O 3 r 5(1) provided the court with the power to grant an extension of time.

8. Owen J rejected the appellant's argument. His Honour held that O 63A r 5(2) excluded by necessary implication the general discretion to extend time found in O 3 r 5(1). In arriving at this conclusion his Honour, after referring to the decision in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 in which it was held that the New South Wales equivalent to O 3 r 5(1) applied to permit a court to extend time within which to comply with a self‑executing springing order even though the initial time limit had expired, said the following at 556:

   "I think that this is a different case from FAI. There are three reasons. First, there is nothing conditional about O 63A, r 5(2). An appeal is either entered in time or it is not. There is nothing left to be decided. This distinguishes it from FAI, where it remained open to question whether the document that the plaintiff lodged was sufficient compliance with the order for particulars. Secondly, the structure of O 63A, r 5 has its own in‑built mechanism to prevent injustice. It does not shut the appellant out entirely. The word used is 'discontinued'. This is a different concept from 'dismissal' … Fresh appellate proceedings can be instituted subject (where necessary) to the exercise of a judicial discretion to extend time. In this regard it is to be noted that O 63A, r 3(1), which contains the 21 day time limit for the commencement of an appeal, does not have any self‑executing properties. I would have no hesitation in saying that the general power to extend time applies to O 63A, r 3(1). Thirdly, this rule concerns appellate proceedings. The appellant has had the merits of the interlocutory dispute determined at first instance. It wishes to pursue an appeal, and it cannot be criticised for so doing. However, there is a significant difference between the situation which arose in FAI and that with which the appellant is confronted.  In the former, the effect of the order was to deny the plaintiff a determination of the substantive dispute.  Here, the rule does not have that effect and nor does it necessarily prevent the appellant from pursuing its appeal against the interlocutory order."

9. His Honour continued at 557 ‑ 558:

   "It is a well known principle of construction both for primary and subsidiary legislation that the meaning of a provision depends on the language used and it must be viewed in its context … [P]olicy considerations are relevant in deciding the ambit and meaning of a provision.

   Order 63A was introduced into the Rules of the Supreme Court … to overcome what was seen as a mischief seriously impeding the administration of the civil justice system. The mischief was that appeals from interlocutory orders were treated in the same way (subject to the need to obtain leave in some cases) as appeal from final orders. This was adding to the delays then being experienced in getting matters to trial. The object of O 63A was to have appeals and applications that come within it disposed of in the shortest possible time so as to minimise delays in getting the substantive litigation to trial.

   As I have already said, there is no lack of clarity in the wording of O 63A, r 5(2). The plain meaning of the words is consistent with a policy that there should be some real and effective sanction if the parties fail to pursue the appeal with vigour and expedition. Again, as I have already said, the rule does not bring an appeal to an end irreversibly. Although it is self‑executing, it does not shut the appellant out completely. In this way it serves the policy aims of the order. A party who is (accidently or deliberately) tardy must convince the court that there are good reasons why it should have a second chance.

   The context in which O 63A, r 5(2) appears also suggests a strict construction according to the plain meaning of the words. Order 63, r 7(1), which sets the time within which an ordinary appeal is to be entered for hearing, contains an express power to extend time, and does not import the notion of discontinuance as a consequence of a failure to comply. Order 63, r 7(1) applies, by general importation, to other types of appeals which come under the Rules of the Supreme Court: see, eg, O 64 and O 65A. This is in stark contrast to O 63A. An interlocutory order, by its very nature, is unlikely to effect a final resolution of the substantive dispute between the parties … That the two should be treated differently, so far as concerns the obligation to enter for hearing promptly, is not surprising."

10. Against the background of Owen J's above cited statements I return to r 45(3).  The starting point is the wording of the rule and the context in which it appears.

11. Unlike the rule the subject of consideration in Eaton Developments v NTC, r 45(3) has no self‑executing properties.  The use of the word "must" in the rule clearly imposes an obligation on the plaintiff to apply for leave to list the case for trial or to be excused from doing so within the 21 day period.  However, I do not consider that the imposition of this obligation is by itself inconsistent or in conflict with the existence of a power to extend the time for compliance with the obligation.  There are a number of rules in the DCR and RSC which compel parties to litigation to take steps in the litigation by specified dates but which are commonly and without dispute the subject of applications for extensions of time within which to take the relevant step: see for example, RSC, O 20, r 1 and O 36A, r 2(3).

12. As to the context in which r 45(3) appears, I do not consider that anything in r 44 or r 45, or for that matter any rule in the DCR, militates against the conclusion that the Court does have the power to extend time for the making of an application under r 45(3). In particular r 45(4), which is the rule the operation of which is contingent on a plaintiff not complying with the time limit specified in r 45(3), is not self‑executing. If r 45(4) provided, in effect, that in the event of the plaintiff failing to make an application under r 45(3) within the 21 day time period the plaintiff's action is taken to be dismissed with judgment entered for the party not in default it might be argued that the context in which r 45(3) appears suggests that the general power to extend the 21‑day period is excluded by implication: see RSC, O 29A r 21; Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86 at [14]. However, r 45(4) is not expressed in such terms or any similar terms. As I have already noted, r 45(4) does no more than give the party not in default the right to apply for judgment without trial if no application is made under r 45(3) within the 21‑day period or if an application is made within that period but is unsuccessful. The rule does not compel the party not in default to make such an application and it does not provide that the Court must allow the application, although this will clearly be the likely result if the plaintiff has already made an application under r 45(3) within the 21‑day time period which has been dismissed.

13. Furthermore, unlike the position that existed in Eaton Developments v NTC, the effect of interpreting r 45(3) as excluding the general power to extend time may, depending on limitation period constraints, be to deprive a plaintiff of the opportunity of having their substantive claim determined. Indeed, one can envisage the situation where a party not in default may deliberately delay in making an application for judgment under r 45(4) until after the relevant limitation period for the action has expired.

14. The purpose of r 45 is fairly obvious, namely to facilitate the fair and just resolution of civil proceedings with minimum delay and expense by ensuring, so far as is possible, that cases that have become inactive are, within a relatively short time, "reactivated" or otherwise finally dealt with by the entering of judgment in favour of the party not in default: RSC, O 1 r 4A and r 4B; DCR, r 24(1); Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [90]; (2009) 239 CLR 175 at 210. The existence of a power to extend time within which to make an application under r 45(3) should not prevent this purpose being achieved. The power will not hinder the party not in default making a prompt application for judgment under r 45(4). Moreover, it will also enable the plaintiff who has failed to comply with the time limit prescribed in r 45(3) to attempt to reactivate their case in circumstances, such as the present, where the party not in default makes no attempt to obtain judgment pursuant to r 45(4). Indeed, to interpret r 45(3) as precluding an application for an extension of time within which to make the application specified therein will give rise to the risk that the party not in default will refrain, perhaps indefinitely, from making an application under r 45(4) and consequently prevent a plaintiff from taking any further steps in the case despite the fact that they have since the expiration of the 21‑day period done all that is necessary to put themselves in a position to enter the case for trial.

15. In summary, for the reasons stated I do not consider that the wording of r 45(3), the context in which it appears or the purpose behind r 45 requires or justifies the conclusion that the rule is in conflict or inconsistent with the general power contained in O 3 r 5(1) of the RSC.  Nor do I consider that Owen J's decision in Eaton Developments v NTC supports the second defendant's contention in relation to this issue.  It follows that in my opinion the Court does have the power to extend beyond the specified 21‑day period the time for the making of an application under r 45(3).

16. In its written submissions the second defendant also contends that the plaintiff's chamber summons filed on 19 February 2010 is incompetent because it does not actually seek an order extending time within which to make the application.  This argument was not pressed during the hearing of the appeal.  If the chamber summons did in fact suffer from this technical deficiency I would not have held it to be incompetent for this reason alone.  However, I do not think the chamber summons does fail to seek an order extending time within which to make the application under r 45(3).  The first order sought by the summons is that the plaintiff have leave to make the application which, when read in the context of the remaining orders sought, can only be viewed as an order allowing the application to be brought notwithstanding the expiry of the 21‑day period.

Contention that extension of time should not be granted

1. Order 3 r 5(2) and r 5(3) confer on the Court a broad power to extend time for compliance with rules of court in order to avoid injustice: FAI General Insurance v Southern Cross Exploration (supra) at 283, 286; Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 at 386, 387, 398 ‑ 399. Nonetheless, the power must be exercised with caution with due regard to the overriding purpose of the RSC and the DCR, namely to facilitate the fair and just resolution of real issues in civil proceedings with minimum delay and expense: RSC, O 1 r 4A and r 4B; DCR, r 24(1); FAI General Insurance v Southern Cross Exploration at 283; Aon Risk Services Australia v Australian National University (supra) at [90], 210.  It follows that in determining the plaintiff's application for an extension of time within which to make his application under r 45(3) I should take into account all relevant circumstances including the reasons for his non‑compliance with the relevant time limit, the prejudice he will suffer if the time limit is not extended, the prejudice that the second defendant will suffer if the time limit is extended and the need to facilitate the fair and just resolution of the issues between the parties with minimum delay and expense.

2. The second defendant submits that the plaintiff should not be granted an extension of time within which to bring his application under r 45(3).  The second defendant contends that the plaintiff has not provided an adequate explanation for his lengthy delay in bringing the application, that case management principles dictate that the application to extend time should be refused and that the action is so devoid of merit that there is no point in resuscitating it by granting an extension of time.

Reasons for delay

1. As to the issue of the reasons for the delay in bringing the application, the plaintiff asserts on the basis of evidence contained in the affidavit of Mr Ferguson that he was not able to comply with the Form 2 Notice of Default and enter the case for trial because the second defendant had not provided discovery, the consequence of which was that he could not certify, as is required by the Form 1 Entry for Trial, that he had been given discovery and inspection by all the other parties to the action.  The plaintiff's counsel informed me during the hearing of the appeal that even though the second defendant has still not provided discovery the plaintiff has, pursuant to the now revoked orders made by the Registrar on 13 May 2010, filed an amended version of the Form 1 Notice of Entry for Trial.  The filed Form 1 has been amended so that the certification relating to discovery that appears on the form reads that the plaintiff has not been given discovery.

2. During the hearing of the appeal I asked the second defendant's counsel why the second defendant had not provided informal discovery.  Counsel said he did not know and could not make any submissions on the point.

3. In the course of making his oral submissions the plaintiff's counsel also proffered as an explanation for the plaintiff's delay in bringing his application under r 45(3) the fact that since May 2009 the plaintiff's solicitors and the second defendant's solicitors have been involved in disputes, or to use the words of counsel "interlocutory skirmishes", in relation to the issue of discovery and the possible striking out of the plaintiff's claim on the ground that the limitation period has expired.  Counsel suggested that the view taken by the plaintiff's solicitors was that these skirmishes needed to be resolved before the case was entered for trial and that there would at a later point be some agreement between the parties to extend the time for the entering of the case for trial.  In putting forward this explanation for the plaintiff's delay counsel frankly conceded that there was little if anything before me in the way of affidavit evidence to establish the explanation.  He also stated in this context that "sometimes clients are distracted by other matters".

4. In my view the plaintiff's provided explanations for his approximate seven month delay in filing his application under r 45(3) are unsatisfactory. The second defendant's solicitors had on 23 January 2009 invited the plaintiff's solicitors to view the second defendant's rehabilitation file. The plaintiff's solicitors declined to take up this invitation. Furthermore, even if the plaintiff or his solicitors believed that the rehabilitation file did not contain all of the discoverable documents in the second defendant's possession (an issue in relation to which there is no evidence) and that consequently the second defendant should provide discovery as required by r 46 of the DCR, it was open to the plaintiff to make an application to the Court for orders compelling the second defendant to provide informal discovery or discovery on affidavit well before the date set down in the timetable for the entry of the action for trial.  In addition, if the plaintiff's solicitors did not consider that the action was ready to be listed for trial due to the interlocutory disputes that were taking place with the second defendant's solicitors the plaintiff could have made pursuant to r 45(3) within the specified 21‑day time period an application for an order excusing him from applying to list the case for trial.  No doubt if this had been done the Court would have taken the opportunity to make programming orders so that the interlocutory disputes could be dealt with and the case progressed with a view to it being listed for trial at a later date in the not too distant future.  Finally, it seems to me from reading the material that I have been provided with that after 5 May 2009 and up until the plaintiff filed its chamber summons on 19 February 2010 there were no "skirmishes" taking place between the plaintiff and the second defendant.  Rather, the plaintiff took some limited steps to progress the matter which the second defendant met with stony silence.

1. Although the plaintiff's proffered explanations for his delay in making the application under r 45(3) are in my view unsatisfactory, the second defendant's conduct in this case is also less than commendable. The fact is that the second defendant, for reasons that have not been disclosed to me, did not and still has not provided discovery to the plaintiff. Moreover, the second defendant has apparently been quite willing to allow the action to languish following the plaintiff's failure to comply with the Form 2 Notice of Default. As I have already noted, the second defendant only made its application under r 45(4) when the plaintiff made its application under r 45(3).

Prejudice

1. The second defendant has not adduced any evidence to the effect that it will be prejudiced if the plaintiff's application for an extension of time is allowed.  It was not submitted by the second defendant that it will suffer any prejudice.  This is not surprising.  Clearly the grant of an extension of time will not prejudice the second defendant's position on the determination of the merits of the plaintiff's application for the matter to be listed for trial and consequently declared no longer inactive.

2. There is no doubt that the plaintiff will suffer prejudice if his application for an extension of time is refused. His action will remain inactive and will not be listed for trial. The inevitable consequence of this in the circumstances of the present case, as is accepted by both parties, will be that I will uphold the second defendant's application for judgment without trial made pursuant to r 45(4). In short, if I refuse the application for an extension of time any chance that the plaintiff has of having his case relisted and the substantive issues raised by his claim determined will be lost.

Merits

1. In support of its contention that the merits or otherwise of a plaintiff's claim is a relevant consideration in dealing with an application to extend time for the bringing of an application under r 45(3) the second defendant relies on the decision in Ward v Keet[No 3] [2010] WASC 71. Ward v Keet (supra) was concerned with an application to extend time for compliance with a springing order.  In that case Murphy J accepted, consistently with the earlier decisions in MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49 and Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90, that in determining the application before him it was relevant to consider whether or not the defaulting party had a reasonably arguable case on the merits: at [27] and [38]. The second defendant submits that the combined operation of r 45(3) and r 45(4) is closely analogous to the operation of a springing order and that it therefore follows, in light of Ward v Keet, that I should take into account the merits of the plaintiff's case, or lack thereof, in determining the plaintiff's application for an extension of time.

2. In my view the second defendant's suggested analogy between a springing order and r 45(3) and r 45(4) does not exist. Springing orders are self‑executing. Rule 45(3) and r 45(4) are not. It follows that I do not consider that the merits of a plaintiff's claim should ordinarily be taken into account in determining an application for an extension of time within which to bring an application under r 45(3). However, in case I am wrong in holding this view I will deal with the second defendant's submission that the plaintiff's case is devoid of merit.

3. The second defendant's principal submission in relation to the issue of the merits of the plaintiff's claim is that the case as pleaded in both the statement of claim and the minute is doomed to failure because it is barred by s 38(1)(c)(v) of the Limitation Act. As the second defendant correctly points out, even if one takes the minute as reflecting the plaintiff's case, the case as pleaded is that in or about November 2002 the second defendant breached the agreement by failing to keep its promise to make an offer to pay the agreed redundancy payment, such payment being payable in July 2003. The case as pleaded is not that the second defendant promised to pay the agreed redundancy payment upon termination of the plaintiff's employment in July 2003. Therefore, the second defendant argues, the plaintiff's alleged cause of action for breach of contract arose in November 2002 and consequently the six‑year limitation period imposed by s 38(1)(c)(v) expired by no later than the end of November 2008, at least two and a half weeks prior to the date on which the plaintiff issued his writ.

4. The second defendant's argument, based as it is on the pleadings, has merit.  However, during the hearing of the appeal the plaintiff's counsel informed me that however the case has been pleaded, the plaintiff's case is that the agreement that he made with the second defendant was that he would be paid the agreed redundancy payment at the time that he finished his employment with the second defendant, that is, in July 2003 and that the alleged breach of contract constituted by the failure to pay the agreed redundancy payment occurred at that time.  This assertion from the bar table is on the face of it consistent with the statement made by the plaintiff in par 9 of his affidavit sworn on 23 June 2010.  In light of plaintiff's counsel's advice and par 9 of the plaintiff's affidavit I am not willing to find that the plaintiff's case is statute barred and therefore without merit.

5. The second limb of the second defendant's argument is that an analysis of the affidavit evidence that has been put before me for the purpose of the appeal reveals that there is no prospect of the plaintiff proving any agreement between the plaintiff and the second defendant for the payment of the agreed redundancy payment.  In advancing this argument the second defendant's counsel acknowledged the difficulties with trying conflicting affidavits.  Nonetheless, he endeavoured during the hearing of the appeal to persuade me by reference to various portions of the affidavits that the plaintiff has no prospects of proving the existence of an agreement to pay the agreed redundancy payment.

6. The plaintiff's counsel also took me to various portions of the affidavits.  He submitted that the contents of the affidavits support the plaintiff's allegation that he was promised the agreed redundancy payment.

7. I have considered the competing arguments advanced by counsel on the affidavits.  Having done so I have come to the view that it is simply not possible on the basis of the limited evidence contained in the affidavits, untested by cross‑examination, to conclude that the plaintiff's prospects of proving the existence of an agreement to pay a redundancy payment in July 2003 are non‑existent or even remote.

Conclusion on application for extension of time

1. I have already expressed my dissatisfaction with the plaintiff's explanations for his failure to bring his application under r 45(3) within time or even within a shorter period of time following the expiry of the 21‑day period.  Nonetheless, given the other matters that I have referred to above, namely the second defendant's dilatory conduct, the real prejudice that the plaintiff will suffer if his application for an extension of time is refused and my inability to conclude that the plaintiff's case is completely without merit (even if it is assumed that this is a relevant consideration), I am of the opinion that in the present case it is necessary to grant the requested extension in order to avoid a possible injustice.

The application for leave to list the action for trial

1. The second defendant submits that the plaintiff has failed to put before me sufficient evidence to justify being granted leave to list the case for trial and that therefore the application should be refused.  The second defendant also submits that the fact that the action is devoid of merit provides a further reason for refusing the application.

2. There is, I am informed by the parties, no decision of a Judge of this Court which deals with an application made under r 45(3). However, my attention has been drawn to two decisions of the Supreme Court which have concerned applications made by plaintiffs pursuant to O 29A, r 20(2) to remove actions from that court's Inactive Cases List.

3. In Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 the plaintiff's application for its case to be removed from the Inactive Cases List was opposed. In dealing with the application Master Sanderson said at [9] ‑ [11]:

   "In the absence of any authority, it is necessary to determine what approach should be adopted.  In my view, an application to be removed from the List should be granted provided that the party and its solicitors are serious about taking some steps in the proceedings.

   In this case, for instance, the evidence filed by the plaintiff establishes that they wish to amend the statement of claim and proceed with the action with some expedition.  This approach invites the making of programming orders which can ensure that the case progresses in an expeditious fashion.

   There is no purpose to be served in treating an application to be removed from the list as a defence to an application to strikeout for want of prosecution.  To do that is to add another layer of complexity to case management.  If after a matter is removed from the list a party seeks to strike out the action for want of prosecution, then the principles which apply to such applications can be considered.  Those principles are well established and the cases are numerous.  To introduce a subtle but significant change, and by forcing a party to effectively defend an application to strikeout for want of prosecution, serves no useful purpose.

   Having said that, I should emphasise that an application for removal from the List should not be regarded as mechanical.  Some evidence should be advanced to show both that the party and its solicitors are committed to advancing proceedings.  Ideally, a timetable should be set, perhaps backed up by a springing order.  If in opposing an application for removal from the List a party takes the view that an application to strikeout for want of prosecution would succeed, then such an application can be programmed.  This approach allows for the effective operation of the list without unduly complicating the process of litigation."

4. The Master allowed the application.

5. Subsequently, in Love v Griffiths [2008] WASC 168 Master Sanderson dealt with another application to remove an action from the Supreme Court's Inactive Cases List. In dealing with the application the Master, after referring to his above cited statements in Swick Nominees v Norncott (supra), said at [3] ‑ [5]:

   "It will be apparent from those comments that it was not my intention to make removal from the List an unduly onerous undertaking … In my view, consistent with the underlying principle that case management is not an end in itself, there is simply no warrant to put unnecessary obstacles in the way of a litigant who wishes to have his case determined even if he has been somewhat tardy in the past.  Of course, every case must depend on its merits and calls for an exercise of discretion – that discretion being exercised judicially.

   The application in this case was supported by an affidavit … sworn 28 July 2008 …

   This affidavit is woefully inadequate.  It does not explain the history of the action, the reasons why it has not progressed with some expedition, it gives no idea of how far advanced the preparation of the case might be, it gives no timetable for the finalisation of matters of evidence and it provides no timetable which would allow an assessment to be made as to when the case might be ready for trial …"

6. Master Sanderson concluded that on the material before him there was no justification to remove the case from the Inactive Cases List.

7. The Supreme Court's Inactive Cases List regime contained in O 29A r 16 to r 21 of the RSC is structured differently to this Court's regime.  However, in my view the approach which was taken in Swick Nominees and Love v Griffiths (supra) to applications to remove actions from the Inactive Cases List is equally applicable to an application made under r 45(3).  This is so because the purpose underlying both regimes is the same, namely to facilitate the fair and just resolution of civil proceedings with minimum delay and expense by ensuring, so far as is possible, that cases that have become inactive are, within a relatively short time, "reactivated" or otherwise finally dealt with by the entering of judgment in favour of the party not in default: Greenmount Constructions Pty Ltd v Diploma Construction Pty Ltd [2009] WADC 107 at [10].

8. Applying Master Sanderson's approach, I do not consider that the merits of the plaintiff's case are relevant to the determination of the plaintiff's application.  In my view if the second defendant wishes to contend that the plaintiff's case is devoid of merit it should make an application for summary judgment.  In any event, and for the reasons that I have already given, I do not consider that I am able to conclude on the material before me that the case has no prospects of success.

9. That leaves the question of whether the plaintiff has demonstrated that he is serious about proceeding with his action.  In the present case it is submitted on behalf of the plaintiff that there is sufficient material before me to permit me to be satisfied that the plaintiff and his solicitors are serious about progressing his case.  It is submitted that although there was a period between May and August 2009 when the plaintiff did nothing to progress his case he did between August 2009 and 19 February 2010 take some limited steps to progress his action in the form of serving a list of documents, requesting the second defendant's informal list of documents and filing a short schedule of damages.  It is also submitted on behalf of the plaintiff that the fact that he has filed his affidavit in support of his application under r 45(3) sworn on 23 June 2010 and entered the case for trial in accordance with the now revoked orders of the Registrar, is further evidence of his desire to proceed with the action.

10. I am satisfied on the material put before me, albeit not by a large margin, that the plaintiff and his solicitors are now, whatever their earlier attitude may have been, serious about progressing his case to trial.  In these circumstances, and notwithstanding the considerable delay in the progression of the case to date, I have decided to allow the plaintiff's application under r 45(3) for leave to list the case for trial.

Decision on the appeal

1. For the reasons I have stated I allow the plaintiff's application for an extension of time within which to bring his application under r 45(3) and allow his application under that rule for leave to list the case for trial. Furthermore, I am satisfied that there is no reason for the case to be inactive and accordingly order, pursuant to r 45(5), that the case is no longer inactive.

2. In light of my decision to allow the plaintiff's application under r 45(3), I dismiss the second defendant's appeal against the decision of the Deputy Registrar on the plaintiff's chamber summons filed on 19 February 2010.  I also dismiss the appeal against the Deputy Registrar's decision on the second defendant's chamber summons filed on 24 February 2010.

3. I will hear the parties as to the precise terms of the orders that I should make.

Application to amend statement of claim

1. In light of my decision on the appeal I will allow the plaintiff's application to amend his statement of claim.  However, given my stated views as to the divergence between the plaintiff's case as pleaded in the minute and the plaintiff's case as stated to me by the plaintiff's counsel, I do not propose to make orders granting leave to amend the statement of claim in accordance with the minute.  I will hear the parties as to the terms of the orders that should be made.

Further programming orders

1. During the hearing of the appeal I was told that the case was listed for a pre‑trial conference on 7 July 2010.  I agreed with the parties that if I did not hand down my decision prior to that date the parties would liaise with the Court's registry for the conference to be adjourned to a fixed date later in July.  I assume that this has been done.  If it has not been done I will make an order listing the matter for a directions hearing or a pre‑trial conference with a view to ensuring that the case progresses to trial as quickly as possible.