Cox v Mann - [2006] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: COX -v- MANN [2006] WASC 125

CORAM: MASTER NEWNES

HEARD: 7 & 14 JUNE 2006

DELIVERED : 14 JUNE 2006

PUBLISHED : 28 JUNE 2006

FILE NO/S: CIV 1190 of 2005

BETWEEN :BRYAN RICHARD COX
Plaintiff
AND
FREDERICK BRUNO MANN
Defendant

FILE NO/S :CIV 1191 of 2005

BETWEEN :JAMES THOMAS DABELSTEIN
Plaintiff
AND
FREDERICK BRUNO MANN
Defendant

Catchwords:

Practice and procedure - Defence struck out - Order of Case Management Registrar that unless amended defence be filed by stipulated date plaintiff may apply for judgment - Amended defence not filed - Judgment entered on motion before Master - Order perfected - Subsequent application to vary order of Case Management Registrar to extend time to file amended defence - Whether order of Case Management Registrar can be varied while judgment extant - Whether judgment can be set aside other than on appeal - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 3 r 5, O 4 r 2, O 13 r 10, O 21 r 10, O 22 r 10, O 29A r 13, O 34 r 3, O 41 r 1, O 54 r 3, O 58 r 22(3), O 58 r 23, O 59 r 3(1), O 59 r 7

Result:

Applications dismissed

Category: B

Representation:

CIV 1190 of 2005

Counsel:

Plaintiff: Mr D J Pratt
Defendant: Mr J G Kitto

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Kitto & Kitto

CIV 1191 of 2005

Counsel:

Plaintiff: Mr D J Pratt
Defendant: Mr J G Kitto

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Kitto & Kitto

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

Bailey v Marinoff (1971) 125 CLR 529
Chesson v Green & Ors [2002] WASCA 67
DJL v The Central Authority (2000) 201 CLR 226
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Lashansky v Legal Practitioners Complaints Committee [2005] WACSA 217
Skahill & Anor v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASCA 185
Wentworth v Attorney‑General (NSW) (1984) 154 CLR 518

Case(s) also cited:

Nil

MASTER NEWNES: On 22 February 2006, the defendant filed applications in each of these actions to extend the time for compliance with an order by the then Acting Principal Registrar on 29 November 2005. The two applications were heard together and the facts and issues are common to them both. On 7 June 2006 I dismissed both applications for reasons which I gave briefly then, on the basis that I would provide more detailed reasons if requested to do so. The defendant has asked for detailed reasons and these are those reasons.
On 18 February 2005, the plaintiffs each commenced proceedings for defamation against the defendant. The proceedings have taken a common course. In each case, a memorandum of appearance was entered on behalf of the defendant on 22 February 2005. A statement of claim was filed on 9 March 2005 and served on the defendant. A defence was…

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.

Continue reading Cox v Mann

Details

AGLC: Cox v Mann [2006] WASC 125
Case: [2006] WASC 125
Decision Date: 28 JUNE 2006

CaseChat Overview and Summary

In the case of Cox v Mann, the defendant sought to challenge the validity of judgments entered against him after his defence was struck out. The proceedings involved the defendant's failure to file an amended defence within the stipulated timeframe, resulting in an order by the Case Management Registrar that unless the amended defence was filed by a certain date, the plaintiff could apply for judgment. Despite the deadline passing, the plaintiff proceeded to move for judgment, which was subsequently granted. The defendant then applied to the court to vary the Case Management Registrar's order to extend the time for filing an amended defence and to set aside the judgments.

The primary legal issues before the court were whether the order of the Case Management Registrar could be varied while a judgment was extant and whether a judgment could be set aside other than through an appeal. The court considered these issues in light of the principles established in FAI General Insurance Co Ltd v Southern Cross Exploration NL, where the High Court held that a court could extend time for complying with a self-executing order to prevent injustice.

The court concluded that the orders of the Case Management Registrar were not self-executing, and therefore, the judgments entered were not pursuant to those orders but rather based on separate applications for judgment. The court found that the defendant's difficulties in understanding and filing an amended defence should have been raised in opposition to the applications for judgment and in support of an application to extend time. Since the defendant did not appear in court and the judgments were properly entered, the court held that there was no basis to set aside the judgments except through an appeal. The court further noted that if the defendant sought to challenge the judgments, he would need to appeal to the Court of Appeal against the order of the Acting Master.

In summary, the court determined that the judgments could not be set aside except through an appeal and that the orders of the Case Management Registrar could not be varied while the judgments remained in place. The court dismissed the defendant's application to vary the orders and set aside the judgments.

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

In FAI General Insurance Co Ltd v Southern CrossExploration NL (1988) 165 CLR 268, the High Court held that a rule of the New South Wales Supreme Court, comparable to O 3 r 5 of the rules of this Court, empowered the Court which made a self‑executing order to extend time for complying with the order after the time specified for compliance had expired and whether or not the proceeding in which it was made was still on foot. The case was concerned with an order which provided that proceedings be dismissed "unless on or prior to 30 May 1986 the plaintiffs" did certain things, which things the plaintiffs had failed to do. Wilson J (with whom Brennan, Deane and Dawson JJ agreed) described the rule (at 283) as "a remedial provision which confers on a court a broad power to relieve against injustice" and said (at 284) that "[i]t would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non‑compliance." The orders of 29 November 2005 were not, of course, self‑executing orders and judgment was not entered pursuant to those orders. The orders opened the way for the plaintiffs to move for judgment but it was not inevitable that judgment would be given on such an application. That was a separate matter for determination by the Court on the application, if it were made. The difficulties experienced by the defendant in understanding what was required of him by the orders of the Case Management Registrar, and his inability to file an amended defence, were matters that were open to him to advance in opposition to the applications for judgment and also in support of an application to extend the time in each case for the filing of an amended defence. That, of course, did not occur as the defendant did not appear on the hearing of the motion. In the present circumstances, where the defendant was properly served with notice of the hearing of the motions for judgment, there is, in my view, no basis upon which it is open to the Court to set aside the judgments, except on appeal. Unless and until the judgments are set aside on appeal, the Court cannot, in my view, vary the orders of the Case Management Registrar of 29 November 2005. In any event, no useful purpose would be served by doing so. The judgments would remain unaffected. The defendant's present difficulty lies, not in the orders which opened the way for the applications for judgment to be made, but in the subsequent orders on the notices of motion by which judgment was given against him. As I indicated to counsel during the course of the hearing of the applications, in my view if the defendant seeks to set aside the judgments, he must proceed by way of appeal to the Court of Appeal against the order of the Acting Master of 11 January 2006. In view of the conclusion I reached it was unnecessary to consider whether the order of the Case Management Registrar of 29 November 2005 is a case management direction within the meaning of O 29A r 13.