Bevan v Bevan

Case [2016] WASC 7

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BEVAN -v- BEVAN [2016] WASC 7

CORAM:   ACTING MASTER GETHING

HEARD:   27 OCTOBER 2015

DELIVERED          :   15 JANUARY 2016

FILE NO/S:   CIV 2519 of 2012

MATTER                :Inheritance (Family & Dependants Provision) Act 1972 (WA)

The Will of BETTY SCHOFIELD BEVAN late of Bethanie Fields, 111 Eaton Drive, Eaton, Western Australia, Deceased Probate No 1018/2012

BETWEEN:   JUSTINE MARIE BEVAN

First Plaintiff

BRETT GRAEME BEVAN
Second Plaintiff

AND

KENNETH VIVIAN BEVAN as Executor of the Will of BETTY SCHOFIELD BEVAN
First Defendant

JANICE ELLEN PERRY as Executor of the Will of BETTY SCHOFIELD BEVAN
Second Defendant

MARGARET ANNE DONALDSON as Executor of the Will of BETTY SCHOFIELD BEVAN
Third Defendant

Catchwords:

Practice and procedure - Whether the court has power to set aside a judgment given in the inherent jurisdiction when a party did not attend a case management hearing

Legislation:

Rules of the Supreme Court 1971 (WA), O3 r 5, O 34 r 3

Result:

Judgment of 11 June 2015 set aside

Category:    A

Representation:

Counsel:

First Plaintiff                :     Ms E C Hensler

Second Plaintiff            :     Ms E C Hensler

First Defendant             :     Dr P R MacMillan

Second Defendant         :     Dr P R MacMillan

Third Defendant           :     Dr P R MacMillan

Solicitors:

First Plaintiff                :     Benz Legal

Second Plaintiff            :     Benz Legal

First Defendant             :     Slee Anderson & Pidgeon

Second Defendant         :     Slee Anderson & Pidgeon

Third Defendant           :     Slee Anderson & Pidgeon

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

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345

Dean v Collins [No 2] [2015] WASCA 151

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Johnson & Co v Clifford (1905) 7 WALR 240

Koushappis v The State of Western Australia [2015] WASC 64

Koushappis v The State of Western Australia [No 2] [2012] WASCA 194

Maas v O'Neill [2013] WASC 379

Magenta Nominees Pty Ltd v Bonini [1999] WASC 88

Mariotti v Wanneroo North Pty Ltd [2008] WASC 109

Melville v East End Holdings Inc [2003] WASCA 133

Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273

MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

Osgood v Wham [2007] WASCA 178

Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

Smith v Bank of Western Australia Limited [2010] WASCA 15; (2010) 265 ALR 472

State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398

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AGLC
Bevan v Bevan [2016] WASC 7
Case
[2016] WASC 7
Decision Date

CaseChat Overview and Summary

The case of Bevan v Bevan involved a dispute between the parties, with the plaintiffs seeking to set aside a judgment given in the absence of one party. The matter was heard in the Supreme Court of Western Australia. The primary legal issue was whether the court had the power to set aside a judgment given in the inherent jurisdiction when a party did not attend a case management hearing. The defendants argued that the rule allowing setting aside of judgment in the absence of a party (RSC O 34 r 3) did not apply as the hearing was not a 'trial'. However, the court found that the definition of 'trial' in RSC O 1 r 4 was broad enough to include a 'hearing', and that it would be anomalous if the court did not have the power to set aside the judgment in the inherent jurisdiction when a party did not appear at an interlocutory hearing. The court further found that the hearing before the master was a 'hearing' for the purposes of the definition of 'trial' in RSC O 4 r 1.

The court held that the power to set aside a judgment given in the absence of a party (RSC O 34 r 3) was broad enough to include a 'hearing', and that it would be anomalous if the court did not have the power to set aside the judgment in the inherent jurisdiction when a party did not appear at an interlocutory hearing. The court further found that the hearing before the master was a 'hearing' for the purposes of the definition of 'trial' in RSC O 4 r 1. The court also considered the plaintiffs' alternate submission that the court has the power in its inherent jurisdiction to set aside the Judgment, finding that such power exists and is appropriate as a matter of principle. Therefore, the court set aside the judgment given in the absence of the party.

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

The first head of power relied on by the plaintiffs is RSC O 34 r 3. That rule provides:3.Setting aside judgment given in absence of partyAny judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial. The term 'trial' is defined in RSC O 1 r 4 to include a 'hearing'. The term 'hearing' is not defined. The definitions in RSC O 1 r 4 apply 'unless the context otherwise requires'. The defendants assert that as the hearing before the master on 11 June was not a 'trial', RSC O 34 r 3 does not apply.[10] Counsel for the defendants did not suggest a definition of a 'trial'. For present purposes, a possible definition of a 'trial' consistent with the defendants' submissions is a hearing at which witnesses will be called, examined and cross‑examined and at which final orders will be made in the case. A hearing which is a 'trial' in this sense is in contradistinction to an interlocutory hearing, being a hearing at which orders are made to prepare a case for 'trial'. If this narrow definition of 'trial' was adopted, it would lead to the odd result that if a party did not appear at a 'trial' and the court awarded judgment, the court would have the power to set aside the judgment, but if the party did not appear at an interlocutory hearing (ie a hearing that is not a 'trial'), and the court awarded judgment, the court would not have the power to set aside the judgment.[10] Defendants' submissions [2]. There are two other relevant instances in which a judgment may be set aside which add to the argument that it would be anomalous if the court did not have the power to set aside a judgment awarded in the inherent jurisdiction when a party did not appear at an interlocutory hearing. This first is that if the plaintiffs had not received any notice of the hearing, and had thereby not been given a reasonable opportunity of appearing and presenting their case, then the court would have had inherent jurisdiction to set aside the Judgment without the necessity of an appeal.[11] (In the present case, it is clear that notice of the hearing was given).[12][11] Commonwealth of Australia [25]; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J).[12] See also Koushappis v The State of Western Australia [2015] WASC 64 [36], [39], [49]. The second instance is that if the order made by the master had been a springing order, and judgment had been entered as a result of non‑compliance, it is clear that the court has the power pursuant to RSC O 3 r 5 to enlarge the time for compliance, thereby causing the judgment to be set aside.[13] Where a party does not attend the hearing at which the springing order is made, the springing order is to be drafted so that compliance is due within a set number of days after service of the order.[14][13] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 286 (Wilson J, Deane & Dawson JJ agreeing); Melville v East End Holdings Inc [2003] WASCA 133 [17] (Hasluck J, Pullin J agreeing); MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] (Newnes M); Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351 [3] ‑ [4] (Le Miere J).[14] Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [18] (Judgment of the Court).

Ratio Decidendi

Legal Principle Established

The second instance is that if the order made by the master had been a springing order, and judgment had been entered as a result of non‑compliance, it is clear that the court has the power pursuant to RSC O 3 r 5 to enlarge the time for compliance, thereby causing the judgment to be set aside.[13] Where a party does not attend the hearing at which the springing order is made, the springing order is to be drafted so that compliance is due within a set number of days after service of the order.[14][13] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 286 (Wilson J, Deane & Dawson JJ agreeing); Melville v East End Holdings Inc [2003] WASCA 133 [17] (Hasluck J, Pullin J agreeing); MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] (Newnes M); Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 7] [2010] WASC 351 [3] ‑ [4] (Le Miere J).[14] Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [18] (Judgment of the Court). The fact that the Judgment was awarded in the inherent jurisdiction of the court also adds to the argument that it would be anomalous if the court did not have the power to set it aside. That jurisdiction is exercised to prevent an injustice by the processes of the court being abused. If a party who does not appear when judgment is awarded, upon being made aware of the judgment, comes to court and presents a compelling argument as to why the processes of the court have not been abused, then it would seem unjust not to set aside the judgment. In Koushappis v The State of Western Australia Jenkins J applied the power in RSC O 34 r 3 in the context of an application for orders under the Criminal Property Confiscation Act 2000 (WA).[15] The hearing at which the judgment was awarded did not appear to be a 'trial' in the narrow sense defined above.[15] Koushappis [32], [35]. For these reasons, I am of the view that the context of RSC O 34 r 3 does not require the definition of 'trial' in RSC O 4 r 1 to not apply, and that 'trial' in RSC O 34 r 3 includes a 'hearing'. In my opinion, it would be anomalous if the court did not have the power to set aside a judgment awarded in the inherent jurisdiction when a party did not appear at an interlocutory hearing. I am further of the view that the hearing before the master on 11 June 2015 was a 'hearing' for the purposes of the definition of 'trial' in RSC O 4 r 1. In the event that I am wrong in this conclusion, it is appropriate that I consider the plaintiffs' alternate submission that the court has the power in its inherent jurisdiction to set aside the Judgment. A decision to strike out an action for want of prosecution in the inherent jurisdiction of the court is an interlocutory decision.[16] By analogy, the decision in the present case, also in the inherent jurisdiction, would be an interlocutory decision. The court has the power to discharge or vary an interlocutory decision in its inherent jurisdiction.[17] The analysis set out at [18] above explains why this is appropriate as a matter of principle, at least in the circumstances of the present application.[16] Smith v Bank of Western Australia Limited [2010] WASCA 15; (2010) 265 ALR 472 [67] (Newnes JA); Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 [2] (Martin CJ, Wheeler & Pullin JJA agreeing).[17] Commonwealth of Australia [23] ‑ [24] (Steytler P), [70] (Pullin JA); Commonwealth Bank of Australia Ltd vSaraceni [2013] WASC 115 [9] (Corboy J).