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

DERRICK DCJ: The second defendant appeals…

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: [2010] WADC 104
Decision Date: 16 JULY 2010

CaseChat Overview and Summary

The case of Allen v Western Power Corporation concerns an appeal against a decision of the Deputy Registrar of the Supreme Court of Western Australia. The dispute relates to the timing of an application made under rule 45(3) of the District Court Rules 2005, and whether the District Court has the power to extend the time for making such an application. The appellant sought to extend the time for making an application under rule 45(3), and also sought leave to amend their statement of claim.

The court was required to decide whether the District Court has the power to extend time for making an application under rule 45(3) of the District Court Rules 2005, and if so, what principles should be applied in determining such an application. The court was also required to determine whether the principles that should be applied in determining an application under rule 45(3) were different from those that should be applied in determining an application for leave to amend a statement of claim.

The court rejected the appellant's argument that the District Court had the power to extend time for making an application under rule 45(3). The court held that rule 5(2) of Order 63A of the Supreme Court Rules excluded by necessary implication the general discretion to extend time found in rule 5(1) of Order 3. The court held that the strict construction of rule 5(2) of Order 63A was consistent with the policy aims of the order, which 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. The court held that the context in which rule 5(2) of Order 63A appears also suggests a strict construction according to the plain meaning of the words. The court held that the principles to be applied in determining an application under rule 45(3) were not necessarily different from those that should be applied in determining an application for leave to amend a statement of claim.

The court's decision was that the appellant's appeal was dismissed, and the appellant's application to extend time for making an application under rule 45(3) was refused. The court's decision was based on the strict construction of rule 5(2) of Order 63A, and the policy aims of the order. The court held that the principles to be applied in determining an application under rule 45(3) were not necessarily different from those that should be applied in determining an application for leave to amend a statement of claim. The court held that the appellant's application for leave to amend the statement of claim was also refused.

Orders

Orders of the court

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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

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." 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."