Davis v Davis

[2012] WASC 344

DAVIS -v- DAVIS [2012] WASC 344

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 344
Published:	17/09/2012
Case No:	CIV:2822/2008	Heard:	16 AUGUST 2012
Coram:	MASTER SANDERSON	Delivered:	17/08/2012
No of Pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
Click here for Judgment in Adobe Acrobat Format

Parties:	RONALD CLIFTON DAVIS MARGARET JOAN DAVIS
Catchwords:	Practice and procedure Effect of springing order Turns on own facts
Legislation:	Nil
Case References:	Nil

• Last Updated: 17/09/2012


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS


CITATION : DAVIS -v- DAVIS [2012] WASC 344 CORAM : MASTER SANDERSON HEARD : 16 AUGUST 2012 DELIVERED : 17 AUGUST 2012 PUBLISHED : 17 SEPTEMBER 2012 FILE NO/S : CIV 2822 of 2008 BETWEEN : RONALD CLIFTON DAVIS

Plaintiff

AND

MARGARET JOAN DAVIS
Defendant


Catchwords:

Practice and procedure - Effect of springing order - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed


(Page 2)

Category: B


Representation:

Counsel:


Plaintiff : Mr C A Grasso
Defendant : Mr M S Macdonald


Solicitors:


Plaintiff : Chris Biris
Defendant : Macdonald Rudder (Northbridge)





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

Nil



(Page 3)

1 MASTER SANDERSON: This is an appeal from a decision of Registrar C Boyle. After hearing argument on the matter I allowed the appeal and made certain consequential orders. I indicated I would publish reasons for my decision. These are those reasons.

2 On 26 April 2012 Acting Master Chapman dismissed an application by the plaintiff for leave to amend a statement of claim in terms of a minute propounded by the plaintiff. The learned acting master then went on to order:

Unless the plaintiff file and serve an application for leave to file a statement of claim within 60 days the action be dismissed and the plaintiff pay the defendant's costs of the action to be taxed.

3 That meant the plaintiff had to file and serve the chamber summons and by implication a minute of a further amended statement of claim by 25 June 2012. In fact the order was not complied with. A summons was issued on 25 June 2012 by the plaintiff but it was not served and it was not accompanied by a minute of proposed statement of claim. At no stage has the plaintiff contested their had not been compliance with the order.

4 The matter then came on before Registrar C Boyle on 20 July 2012. It was the defendant's position the failure of the plaintiff to comply with the acting master's springing order brought the action to an end. Counsel for the defendant having acknowledge there is power in the court to extend time for compliance with the springing order argued the chamber summons ought be amended so as to be an application for an extension of time. The learned registrar rejected that submission. He adjourned the plaintiff's chamber summons and required the plaintiff to file and serve a minute of proposed substituted statement of claim by 17 August 2012. It was against that decision the defendant appealed.

5 In my view it is clear once there was a failure to comply with the springing order by the plaintiff, without more, the application would stand dismissed. What was proposed by counsel for the defendant made sense. There was no reason to require a fresh chamber summons to be filed by the plaintiff seeking an extension of time to comply with the springing order. Amendment of the summons before the learned registrar was appropriate. But unless and until the question of whether the extension should be granted was determined, there was no purpose to be served by ordering the provision of a further minute of the statement of claim. That was to take a step in the proceedings which was inappropriate.

(Page 4)

6 Accordingly I allowed the appeal and ordered the plaintiff's chamber summons to be amended to seek an extension of time within which to file a minute of proposed statement of claim. I also made various other consequential orders and programming orders for the hearing of the extension of time application. I ordered the plaintiff pay the defendant's costs of the application.