Australian Growth Managers Ltd v EGERTON-WARBURTON - [2003] WASC 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AUSTRALIAN GROWTH MANAGERS LTD -v- EGERTON-WARBURTON [2003] WASC 50

CORAM: MASTER NEWNES

HEARD: 13 MARCH 2003

DELIVERED : 19 MARCH 2003

FILE NO/S: CIV 2327 of 2002

BETWEEN: AUSTRALIAN GROWTH MANAGERS LTD (ACN 079 141 969)
Plaintiff
AND
GREY EGERTON-WARBURTON
Defendant

Catchwords:

Practice and procedure - Appeal from Case Management Registrar - Order for entry for trial while application for leave to apply to strike out statement of claim pending - Turns on own facts

Legislation:

Rules of the Supreme Court 1971, O 60A

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Plaintiff: Ms K A Vernon
Defendant: Mr M C Hotchkin

Solicitors:

Plaintiff: Metaxas & Vernon
Defendant: Hotchkin Hanly

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

Nil

Case(s) also cited:

Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Harris v Caladine (1991) 172 CLR 84

MASTER NEWNES: This is an appeal by the defendant against an order of a Case Management Registrar that the plaintiff be at liberty to enter the action for trial notwithstanding a pending application by the defendant for leave to apply to strike out the plaintiff's statement of claim. The defendant seeks to set aside that order on the ground that, in view of the outstanding application, the action is not ready for trial.
To understand the circumstances in which the learned Registrar made the order it is necessary to refer to the history of the proceedings.
The writ of summons was issued on 19 September 2002. The defendant filed a memorandum of appearance on 22 October 2002 and a defence on 6 November 2002. The matter came before the Case Management Registrar on 19 November 2002 and directions were given in respect of discovery and inspection. The parties were also given leave to adduce expert evidence and it was ordered that any expert reports on which a party sought to rely must be served within 14 days after the time limited for inspection.
The plaintiff's discovery was filed on 4 December and the defendant's discovery on 5 December. The plaintiff says that it has since served the expert reports on which it intends to rely.
Shortly prior to a further status conference on 21 January 2003 there was correspondence between the defendant's solicitors and the plaintiff's solicitors in which the defendant's solicitors foreshadowed an application to strike out the statement of claim. At the status conference on 21 January that was raised by the defendant's counsel who referred to senior counsel's opinion having been obtained and mentioned briefly two grounds on which it was proposed the application would be brought. The defendant was ordered to make any such application on or before 4 February 2003.
On 4 February 2003 a chamber summons was filed simply seeking an order that the statement of claim be struck out. It did not set out the respects in which the defendant said the statement of claim was defective. An affidavit of the defendant was filed with the chamber summons. It dealt, in substance, with earlier arbitration proceedings involving the plaintiff and a company, WAFM, of which the defendant was a director arising out of essentially the same transactions as those pleaded in this action. It gave no real clue as to the substantive basis on which the strike out application was brought.
It was also clear that the defendant would require leave to bring the strike‑out application, the time period within which an application may be made without leave under O 20 r 19 having expired in November 2002.
At a case evaluation conference on 13 February 2003 the learned Case Management Registrar ordered that the plaintiff be at liberty to enter the action for trial notwithstanding the strike out application. That application was ordered to be referred to a Master for hearing at a special appointment of not more than two hours. At the time those orders were made the learned Registrar had before her in relation to the strike‑out application only the defendant's chamber summons and the affidavit of the defendant to which I have referred. No affidavit had then been filed in support of the application for leave to bring the strike‑out application. Such an affidavit was not filed until 24 February 2003.
On the basis of the material before her the order the learned Registrar made was, if I may respectfully say so, entirely appropriate. On the face of it the matter was ready for trial. The interlocutory orders which had been made had been complied with so far as the plaintiff was concerned and it appears the defendant did not suggest that, putting aside the strike‑out application, there were any other interlocutory orders which needed to be made. There was no material before the learned Registrar which indicated the basis of the strike‑out application or the basis upon which leave would be sought to bring it out of time.
This appeal is a rehearing: O 60A.4.6. It was not in issue that in determining this appeal I am entitled to have regard not only to the material which was before the learned Registrar but any further material which is now before me.
There are, relevantly, two things which I have had the advantage of seeing which were not before the learned Registrar. First, there is the affidavit of Michael Charles Hotchkin sworn 21 February 2003 which deposes to the reasons the strike‑out application has been brought out of time. Second, there is a detailed outline of submissions in support of the strike‑out application. In those submissions the defendant contends, among other things, that the implied representations allegedly made by the defendant, on which the plaintiff relies, are not open on the facts pleaded; that if they are open then on the plaintiff's plea that at all material times the defendant acted as an agent and director of a company, WAFM, the defendant could not be personally liable as pleaded; and that by virtue of earlier arbitration proceedings between the plaintiff and WAFM the current claim is barred by the principle in Port of Melbourne Authority v Anshun (1981) 147 CLR 589.
In having regard to that material I stress that I do not make any findings as to the defendant's ultimate prospects of obtaining leave to bring the application or, if leave is granted, of the strike‑out application being successful. It is, however, relevant in these circumstances to consider, so far as it is possible to do so, whether or not those applications have any reasonable prospects of success. It is also relevant to consider whether the strike‑out application is of a relatively technical or minor nature such that, even if it were successful, it would be unlikely seriously to impede the progress of the litigation, or, at the other end of the scale, whether, if successful, it would require the plaintiff substantially to replead its case or even cause the plaintiff's case to be dismissed without trial.
On the material before me I do not think it can be said of either the application for leave or the strike out application itself that it has no reasonable prospect of success. Nor do I think it can be said that the proposed attack on the statement of claim is of a technical or minor nature. It includes grounds which go to the fundamental basis of the plaintiff's pleaded causes of action. If it were successful it would be likely at least to require the plaintiff substantially to recast the statement of claim.
I am conscious that, as submitted by the plaintiff, the period between entry for trial and trial is likely to be a period of at least six months. The plaintiff, understandably, wishes to minimise the time it must wait to obtain a trial date. It contends that ample time remains to deal with the strike‑out application and any matters which may arise as a result of it. That, however, is a matter of conjecture and in any event it is not a reason to allow actions which cannot be said to be ready in all respects for trial to take a place in the queue ahead of time. I should add that it cannot be said this action has languished to date so as to frustrate the plaintiff's desire to enter it for trial. To this point the action has proceeded with commendable expedition. The writ was issued some six months ago. There has been no delay by the parties in attending to the interlocutory timetable and, subject to the strike out application, it appears the action is ready to be entered for trial.
In the present circumstances, in light of the material which is now before me, I consider it is not appropriate that the matter be entered for trial at this stage. I would therefore allow the appeal and set aside the order of the learned Registrar.
It will obviously be incumbent upon the defendant to pursue its current application to strike out the statement of claim with all proper expedition and it would, of course, be open to the plaintiff to make a further application to enter the matter for trial, notwithstanding that pending application, if circumstances change or proper grounds otherwise exist.
I will hear the parties on costs.