ANSA Enterprises Pty Ltd v Australian Finance Group Ltd - [2020] WASC 378

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ANSA ENTERPRISES PTY LTD -v- AUSTRALIAN FINANCE GROUP LTD [2020] WASC 378
CORAM:   MASTER SANDERSON
HEARD:   10 SEPTEMBER 2020
DELIVERED          :   10 SEPTEMBER 2020
PUBLISHED           :   20 OCTOBER 2020
FILE NO/S:   CIV 2675 of 2014
BETWEEN:   ANSA ENTERPRISES PTY LTD
First Plaintiff
ANTHONY ESPOSITO
Second Plaintiff
AND
AUSTRALIAN FINANCE GROUP LTD
Defendant

Catchwords:

Practice and procedure - Application to remove action from Inactive Cases List - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed with costs

Category: B

Representation:

Counsel:

First Plaintiff	:	T Galic
Second Plaintiff	:	T Galic
Defendant	:	C Hicks

Solicitors:

First Plaintiff	:	TGC Lawyers
Second Plaintiff	:	TGC Lawyers
Defendant	:	Herbert Smith Freehills

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

Nil

MASTER SANDERSON:

This was the plaintiffs' application to remove the matter from the Inactive Cases List. After hearing argument I dismissed the plaintiff's application. I said that I would publish reasons for my decision. These are those reasons.
The plaintiffs commenced this action on 5 December 2014. A statement of claim was filed on 26 February 2015 and a defence was filed on 22 May 2015. The plaintiffs took no further action until a notice of intention to proceed was filed on 20 June 2017. The plaintiffs then provided answers to the defendant's request for further and better particulars on 20 June 2017. On 25 June 2018 the defendant filed a minute of proposed orders which presumably it was asking Registrar C Boyle (who was case managing the action) to make at a case management conference scheduled for 27 June 2018. The first of those orders was a springing order pursuant to which the defendant sought to have the plaintiffs provide a schedule of damages by 11 July 2018 or the action would be dismissed. In fact, a schedule of damages was provided on 27 June 2018 and the springing order was not made. Instead the registrar made the following orders:
1. The time within which the plaintiffs are to file and serve a Reply be extended to 29 June 2018.
2. The time within which the parties are to give discovery be extended to 20 July 2018.
3. The time limited for the defendant to comply with case management direction 5 of 15 November 2017 be extended to 6 July 2018, and the time limited by case management direction 11 of 15 November 2017 be extended to 1 August 2018.
4. The Status Conference be adjourned sine die.
5. The plaintiffs pay the costs of today, fixed in the sum of $484.00

It is worthy of note that by this stage the action had been on foot over 3½ years and there had been nine scheduled status conferences. Yet the matter had not progressed to the point where pleadings were closed. The fact the defendant proposed a springing order in relation to the provision of a schedule of damages suggests, even at this point, the defendant was concerned at the rate at which the action was progressing.
The defendant provided discovery by an affidavit filed 27 July 2018. The discovery was seven days late. The plaintiffs provided discovery on 2 October 2018, over two months late. At that point the action stalled.
On 20 December 2019, the defendant's solicitors sent an email to the Associate to Registrar C Boyle. They noted that 'the last procedural step on this matter occurred on 20 December 2018, when the parties exchanged copies of their discovered documents'. They asked the matter be placed on the Inactive Cases List pursuant to O 4A r 24 of the Rules of the Supreme Court 1971 (WA). This provoked an email to the Registrar's Associate from the plaintiffs' solicitor attaching a letter dated 23 December 2019. That letter reads as follows:
We act for the Plaintiffs in this matter.
Since the last procedural step was taken it had been suggested to us by the Defendant’s solicitors Herbert Smith Freehills (HSF) that another party St James Finance Corporation Pty Ltd (SJFC) should be joined as a party to these proceedings.
We began investigating the basis for these claims.
Written communication was sent to SJFC.
HSF were informed in writing on 10 April 2019 that possible action against SJFC was under consideration and that HSF would be notified of any action taken.
On 15 November 2019 HSF were informed in writing that separate proceedings had been instituted against SJFC in CIV 2978 of 2019 and that it was intended to write to the court requesting to have both CIV 2675 of 2014 and CIV 2978 of 2019 case managed and heard together, HSF were asked to advise if there were any objections to this proposed course.
HSF did not respond.
There was a case management directions hearing held in CIV 2978 of 2019 on 12 December 2019 before Registrar McDonald. The Registrar was informed about the existence of CIV 2675 of 2014 and our clients desire to have the two matters case managed together and likewise mediated at the same time.
CIV 2978 of 2019 was adjourned to another case management hearing on 16 January 2020.
There will be a Statement of Claim filed in CIV 2978 of 2019 by 7 January 2019.
Our client requests that both matters be thereafter case managed and heard together after that with a view to holding a joint mediation in both matters together early in the new year.
We await to hear further from the court in these matters.
There followed some email correspondence between the Registrar's Associate and the parties. The correspondence can be summarised by saying the defendant's solicitors wished to have the matter placed on the Inactive Cases List and the plaintiffs' solicitors did not. The court record does not indicate any hearing took place. But the parties had the opportunity to put their position in correspondence. Eventually on 11 March 2020, the Principal Registrar advised the matter had been placed on the Inactive Cases List. The letter read as follows (I assume this is a standard form letter but in the context of this case its contents are of some importance):
I refer to the proceeding described above.
As no procedural step has been taken in this case for 12 months by any party, the case is taken to be inactive pursuant to the Rules of the Supreme Court 1971 (RSC) O 4A r 24.
I now give written notice pursuant to the RSC O 4A r 25(1)(b) that:
1. I have put this case on the Inactive Cases List because it has been taken to be inactive pursuant to the RSC O 4A r 24 by reason of no procedural step having been taken in the case for 12 months by any party; and
2. if this case is on the Inactive Cases List for six continuous months after the date on which this notice is given, pursuant to the RSC O 4A r 28, this case will be taken to be dismissed for want of prosecution.
Upon receipt of this written notice, in accordance with the RSC O 4A r 25(2), any practitioner who represents a party must, as soon as practicable after receiving the notice, notify the party of:
1. the fact that this case has been placed on the Inactive Cases List and why; and
2. the effect of the RSC O 4A r 28.
Finally, I note that if a case is on the Inactive Cases List, only the following documents may be filed in the Court in relation to the case:
(a) a request seeking leave from the Court that the case be removed from the Inactive Cases List under the RSC O 4A r 27(1);
(b) a notice of discontinuance by the first plaintiff and/or the second plaintiff under the RSC O 23 r 2;
(c) a request made by the plaintiffs or the defendant for leave under the RSC O 23 r 2; or
(d) a written consent under the RSC O 43 r 16 to the making of an order that would dispose of the case.
It is clear this action was properly placed on the Inactive Cases List. It had fallen foul of O 4A r 24. Notice had been given to the parties under O 4A r 25. The plaintiffs were properly notified they could apply to remove the action from the Inactive Cases List under O 4A r 27. The Sword of Damocles, as embodied in O 4A r 28(1) was hanging over the plaintiffs.
A summons seeking to have the matter removed from the Inactive Cases List was filed 31 August 2020. It was supported by an affidavit of the second plaintiff sworn that same day. The matter came on for hearing (on an urgent basis) on 1 September 2020. After hearing limited argument I gave the defendant leave to file an affidavit in opposition to the application and submissions. I also gave leave to the plaintiffs to file submissions. The matter was adjourned to 10 September 2020 for hearing.
In his written submissions, counsel for the defendant objected to a number of paragraphs of the second plaintiff's affidavit. I struck out three of the paragraphs complained of - pars 12, 31 and 32. As to par 12 it was said the evidence was inadmissible because it was opinion, conclusory and based on an unstated belief. Each of those three grounds were made out. As to pars 31 and 32, they were both embarrassing and irrelevant and were struck out on that basis. Paragraphs 16, 24 and 27 were admitted. Paragraph 16 really provides a short potted summary of the plaintiffs' claim. While it is of little probative value - reference can be made to the statement of claim - it is an inoffensive summary of the plaintiffs' cause of action. Paragraphs 24 and 27 give some evidence of the plaintiffs' financial position. Really what is being said is the plaintiffs believe they have been impecunious because of the defendant's actions. Of course the defendant maintains it has done nothing wrong and is in no way liable to the plaintiffs. So the evidence really does no more than highlight the fact the plaintiffs believe his impecunious position is a consequence of the defendant's action. Whatever may be the value of that evidence, it is in my view, admissible.
Before dealing with the evidence I should say something of the principles regarding the basis for removing an action from the Inactive Cases List. At pars 12 through to 15 of his written submissions, counsel for the defendant provided what is a reasonable summary of the principles to be drawn from the decided cases. The submissions read as follows:
12An application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order: Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 at [11]; Lashansky v Legal Practice Board [No 2] [2010] WASC 159 at [68] (Lashansky).
13The plaintiff's evidence should demonstrate how the matter came to be on the Inactive Cases List and how the plaintiff will ensure the matter will not again become inactive. This includes evidence as to the state of preparation of the case and steps to bring the matter to a hearing: Lashansky at [74], [82] – [83]; Ormarc Engineering v Downer EDI Mining Blasting Services [2020] WASC 7 at [41] (Ormac).
14In the absence of adequate evidence of how the case will be conducted going forward, the history of the conduct of the case may be determinative: Ormac at [61].
15The plaintiff's unexplained delay in applying to have the case removed from the Inactive Cases List will weigh in a significant way against the favourable exercise of the discretion to order removal of the case from the List. The lack of timeliness in taking that essential step is a relevant consideration in assessment whether the case will be conducted in a timely way if taken off the List: Lashansky at [80]; Ormac at [42].
In addition the learned authors of Civil Procedure Western Australia at par 4A.26.2 discuss the applicable principles. I would endorse what is contained in that section.
Submissions filed on behalf of the plaintiffs did not make reference to the legal principles nor refer to any case law. Counsel in his oral submissions did not dispute the accuracy of the defendant's summary of the law.
Turning then to the affidavit of the second plaintiff, he provides no explanation at all as to why the action did not proceed with dispatch prior to 2 October 2019. Between pars 5 and 7, the second plaintiff refers to another party - St James Finance Corporation Pty Ltd (SJFC) - and says that consideration was given to joining SJFC as a party to this action. No detail is provided; there is no real explanation of what investigations were made and what advice was received from solicitors. I understand that separate proceedings have been issued against SJFC but there is no detail as to how far that action has progressed. There is certainly no suggestion that action will be consolidated, or run, with these present proceedings. On the evidence available, I am unable to conclude it was reasonable for this action to be delayed while consideration was given to the SJFC matter.
The remainder of the affidavit sets out the second plaintiff's financial position. Clearly he has had a difficult time of it. He does say that he is now 'no longer burdened with other legal cases and mortgage debt repayments'. On that basis he says he is able to put aside funds for legal proceedings. He attaches tax returns for the years 2014 through to 2019.
With respect, the affidavit is wholly inadequate. No real explanation is offered for the delay up until October 2018. Thereafter, the references to SJFC are so vague and the implications of any action against SJFC are so uncertain it could not be concluded there is a reasonable explanation for the delay. There is no timetable provided, nor is any detail given as to the state of preparation of the case which could allow an assessment to be made as to how far away it is from a hearing. It would appear that the second plaintiff is now better placed financially to pursue the action, but there is no hard evidence as to what arrangements have been made with respect to costs and how those costs are to be met in the medium term. In all, the evidentiary requirements to justify removing the matter from the Inactive Cases Lists have not been met. In addition to all of that, there is no explanation as to why the application was not brought until 31 August 2020. That meant the application had to be determined within 10 days. In a case which had been bedevilled by delay - virtually all of the delay unexplained - the application to remove the matter from the Inactive Cases List should have been taken well before the expiry date loomed. The plaintiffs did not even file their application in a timeframe that allowed for compliance with the rules. Perhaps there was good reason why the application was so late. But if there is good reason it should have been explained.
During the course of his submissions, counsel for the plaintiffs maintained it was in the interests of justice the matter be removed from the Inactive Cases List and be allowed to proceed. But the interests of justice operate two ways. A defendant is entitled to have a claim against it pursued with alacrity. Civil procedure these days embodies the concept of active case flow management and makes it plain to litigants they must move an action forward. When that is not being done a party exposes itself to early determination of the action. The interests of justice so far as the defendant are concerned have been served in this case.
For these reasons, I dismissed the plaintiffs' application and ordered the plaintiffs to pay the defendant's costs, including reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
20 OCTOBER 2020