| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AUSTASIA REAL ESTATE PTY LTD -v- MYRA PTY LTD [2013] WADC 185 CORAM : REGISTRAR KINGSLEY HEARD : 17 OCTOBER 2013 DELIVERED : 27 NOVEMBER 2013 FILE NO/S : CIV 3772 of 2011 BETWEEN : AUSTASIA REAL ESTATE PTY LTD Plaintiff
AND
MYRA PTY LTD
Defendant
Catchwords: Practice - Application to remove case from Inactive Cases List - Turns on own facts Legislation: District Court Rules 2005 Result: Case removed from Inactive Cases List subject to conditions
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Representation: Counsel:
Plaintiff : Ms A K Skinner
Defendant : Mr B D Campbell
Solicitors:
Plaintiff : Austasia Legal Pty Ltd
Defendant : Mony De Kerloy
Case(s) referred to in judgment(s):
Hall v Hall [No 2] [2011] WASC 110
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
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1 REGISTRAR KINGSLEY: The plaintiff has brought an application dated 20 September 2013 seeking orders that:
(1) the plaintiff has leave to make this application; (2) the case no longer be inactive; (3) the defendant file a defence within 21 days of the date of this order; (4) default judgment be granted against the defendant if the defendant fails to lodge a defence within 21 days of this order; and (5) the costs be in the cause.
Brief chronology 2 The plaintiff issued a writ on 25 November 2011 for a liquidated sum in relation to professional services rendered by the plaintiff. The defendant entered an appearance on 15 December 2011 and the plaintiff filed a statement of claim on 25 January 2012. 3 By an application dated 2 March 2012 the defendant applied to strike out the statement of claim. On 2 March 2012 orders were made to programme the application to hearing, one order being the plaintiff file and serve affidavits in response by 30 March 2012 and file and serve submissions by 27 April 2012. 4 The defendant's application was listed for hearing on 3 May 2012. On 18 April 2012 the plaintiff brought an application seeking an extension of time to file its affidavits. By consent the hearing of 3 May 2012 was vacated and the hearing was relisted to 8 June 2012. In the meantime the plaintiff filed an affidavit in opposition to the defendant's application on 30 April 2012. On 8 June 2012 the defendant's application was dismissed. 5 On 26 June 2013 the court issued a notice that the case was placed on the Inactive Cases List (ICL) on 25 June 2013. There has been no argument that the case is not properly on the ICL. 6 On 23 September 2013 the plaintiff brought the application to remove the case from the ICL. The application was supported by an affidavit of Sidney James Chesson sworn 16 September 2013 (Chesson's first affidavit). (Page 4)
Chesson's first affidavit 7 Chesson deposes that the reason no document was filed in this matter is the result of extended informal settlement negotiations between the parties which took place over several months. Chesson deposes that the parties are currently involved in several court proceedings in the Magistrates Court, the District Court and previously Supreme Court. Over the past twelve months the parties have had face to face discussions and telephone discussions in an endeavour to resolve the dispute. 8 At par 9 of Chesson's first affidavit, Chesson sets out a chronology between 13 July 2012 and 3 September 2013 whereby the plaintiff's solicitors either corresponded by letter, by email or by telephone to the defendant's solicitors with very little response. At par 11 Chesson deposes that as soon as the case is removed from the ICL he has instructed his solicitor to seek judgment in default in the event the defendant fails to file a defence within 21 days of the orders being made. Chesson goes on to depose that in the event the plaintiff is unsuccessful in an application for default judgment he will seek programming orders which will ensure that the matter will progress quickly (par 12) and the court should be satisfied that the action will be conducted in a timely manner (par 13). 9 The matter came on for hearing on 17 October 2013 and was adjourned to enable the plaintiff to file and serve a supplementary affidavit and submissions on or before 24 October 2013, and the defendant to file and serve any responsive affidavit and submissions on or before 1 November 2013. The application was then to be dealt with on the papers. 10 The order of 17 October 2013 has not been extracted by the plaintiff – see Circular to Practitioners 'Extraction of Orders' CIV 9/2005 – 21 August 2013 Revision. 11 The plaintiff has filed a supplementary affidavit on 28 October 2013 and submissions on 14 November 2013. The defendant’s submissions were filed on 4 November 2013.
Legal principles 12 Order 44F(3) District Court Rules 2005 provides that an order may be made that a case be removed from the ICL if the court itself finds the case will be conducted in a timely way, or for any other good reason. The application, usually by a plaintiff, involves the exercise of discretion and accordingly it is the obligation of the applicant to put matters before (Page 5)
the court upon which it can properly exercise its discretion. Order 44F(3) places an increased burden of persuasion on the applicant: Hall v Hall [No 2] [2011] WASC 110 Simmonds J at [60]. 13 The principles to be applied in removing a case from the ICL were considered by Beech J in Lashansky v Legal Practice Board [No 2] [2010] WASC 159. Beech J adopted at [68] – [69], the following statements of principles from the decisions of Master Sanderson: (a) courts have generally been sympathetic in the past to a tardy litigant and have been reluctant to grant a strikeout application, but the Inactive Cases List provisions bring a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable despatch, with reasonable significant and self-executing consequences for a tardy litigant: Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86 [12]; and (b) an 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 [11] … In exercising power under O 29A r 20(2) it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial. 14 Beech J went on to say at [74]: In exercising power under O 29A r 20(2) it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial. 15 The question of removing a matter from the ICL was also considered by Simmonds J in Hall's case. Simmonds J at [60] adopts the comments of Beech J. 16 In a supplementary affidavit of Sidney James Chesson sworn 28 October 2013 (Chesson's second affidavit), Chesson deposes that the (Page 6)
plaintiff seeks to remove the case from the ICL so it can continue to pursue its claim for an outstanding debt owed by the defendant. Chesson deposes that the defendant and the plaintiff are involved in several other court proceedings and that the parties have, on their own accord, engaged in informal negotiations to try and resolve the various financial disputes. However, as Chesson deposes in his second affidavit, those negotiations have been unsuccessful. Chesson goes on to depose at par 9 that the plaintiff will conduct the action in a timely manner and that Chesson has instructed his solicitors to make the matter a priority and to progress the claim expeditiously. However no timetable to progress the matter has been stated. Discussion 17 Subsequent to the defendant's solicitors filing submissions the plaintiff's solicitors filed submissions on 14 November. I note that the orders made on 17 October 2013 were that the plaintiff file and serve a supplementary affidavit and submissions on or before 24 October 2013. The plaintiff's supplementary affidavit came in on 28 October 2013 and submissions on 14 November 2013. There is nothing in that course of conduct that gives me comfort the action will be progressed in a timely way. 18 In neither the first affidavit of Chesson nor the second affidavit is there any evidence about how it is proposed that the action would be progressed through to trial. In the submissions filed by the plaintiff's solicitors there is a timetable for a defence by the defendant and discovery culminating in an entry for trial milestone at 1 March 2013. The submissions are, of course, not evidence. 19 There is evidence that the action may have been allowed to go into the ICL because the parties were engaged in informal negotiations. There is no evidence that if an order is made removing the action from the ICL that it will be conducted in a timely way. In fact, with the plaintiff breaching the orders made on the application to remove the case from the ICL points to the plaintiff having a cavalier approach to the court process. 20 I am mindful, the plaintiff having failed to discharge its obligations according to the principles outlined above, that a refusal to take the matter off the ICL may be productive of further delay and cost. On the face of it a refusal means the case stands dismissed for want of prosecution. (Page 7)
21 The explanation for allowing the case to go into the ICL is reasonable. The parties were trying to resolve their various disputes outside the court process. Rather than promote further interlocutory applications, the better approach is for the court to impose its own timetable upon the removal of the case from the ICL. In this way if there is any default there is an opportunity for self-executing consequences for the tardy litigant.
Orders 22 Accordingly, the orders I propose are that the defendant file and serve a defence on or before 13 December 2013. The plaintiff and defendant to exchange a list of documents verified on oath on or before 24 January 2014 and the parties to complete inspection by 7 February 2014. The plaintiff is to enter the action for trial on or before 21 February 2014. 23 I have listed a directions hearing on 24 January 2014 at 3.00 pm.
Costs 24 The plaintiff has brought an application seeking the indulgence that its action be removed from the ICL. Both in the first affidavit and the second affidavit of Chesson in support of the application there was no evidence that the action would be conducted in a timely way. Objectively the plaintiff continued to be tardy, in that the supplementary affidavit of Chesson was filed late and the submissions by the plaintiff's solicitors substantially late. The application, seeking the indulgence, warrants an order that the plaintiff pay the defendant's costs, and the subsequent lack of adherence to court orders warrants that those costs be paid forthwith.
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