Devir v Western Australian Planning Commission
[2007] WASC 176
•3 AUGUST 2007
DEVIR & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 176
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 176 | |
| Case No: | CIV:1400/1999 | 23 JULY 2007 | |
| Coram: | MASTER SANDERSON | 3/08/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused Matter allowed to proceed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN DEVIR MARCIA FRAGIADAKIS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Application to strike out for want of prosecution Turns on own facts |
Legislation: | Nil |
Case References: | The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- MARCIA FRAGIADAKIS
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant
Catchwords:
Practice and procedure - Application to strike out for want of prosecution - Turns on own facts
Legislation:
Nil
Result:
Application refused
Matter allowed to proceed
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Category: B
Representation:
Counsel:
First-named Plaintiff : In person
Second-named Plaintiff : No appearance
Defendant : Ms R M Howlett
Solicitors:
First-named Plaintiff : In person
Second-named Plaintiff : No appearance
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
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1 MASTER SANDERSON: This is the defendant's application to strike out the plaintiffs' claim for want of prosecution. Before dealing with the grounds of the application and the applicable principles, it is appropriate to give a brief history of the action.
2 The writ of summons in this matter was issued on 16 April 1999. The writ was indorsed with a statement of claim. The defendant filed an appearance on 20 April 1999. On 12 May 1999, the defendant filed a defence and a chamber summons seeking to strike out parts of the statement of claim.
3 As set out in the statement of claim, the plaintiffs were owners of certain land which attracted rural zoning under the relevant town planning scheme. By Metropolitan Region Scheme Amendment 978/33 ("the Scheme"), the land was reserved for parks and recreation as part of the Darling Range National Park. The plaintiffs allege in par 12 of the statement of claim that the effect of the amendment was to prevent them from developing the land in the way that they had intended. Planning approval was sought by the plaintiffs in respect of a development on or around 3 January 1997. That application was submitted to the relevant local authority for consideration. The application was refused on the ground that the land was reserved for parks and recreation under the Scheme.
4 The plaintiffs in their statement of claim claimed compensation and, in the alternative, a fair price if the defendant made a valid election to purchase the land. They also sought relief under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct and under the Fair Trading Act 1987 (WA).
5 The defendant made an application to strike out parts of the statement of claim. This application was heard by Master Bredmeyer on 30 July 1999. On 13 August 1999, Master Bredmeyer struck out those parts of the statement of claim based upon the Trade Practices Act and the Fair Trading Act. He allowed the claim for compensation to stand.
6 On 17 September 1999, by consent, Acting Registrar C Boyle ordered that the plaintiffs, without prejudice to their claims in this action, save under s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA), sell and the defendant purchase the land for $89,000.
7 On 23 September 1999, by chamber summons subsequently amended to include various grounds, the plaintiffs sought an order nisi for a writ of certiorari directing the Minister for Planning to "remove into
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- Court for the purpose of being quashed" his approval of amendment 978/33, "Darling Range Regional Park" to the Metropolitan Region Scheme. The amendment had the effect of re-zoning land to parks, recreation, waterways, State forest, public purposes and urban purposes along the Darling Escarpment on 16 April 1996. On 8 October 1999, by chamber summons subsequently amended to include grounds, the plaintiffs sought a stay of the consent orders made on 17 September 1999 involving the sale of land. On 21 October 1999, the plaintiffs filed a motion for order nisi for writ of certiorari, and on 22 October 1999 an application for stay of consent orders. On 27 October 1999, Miller J listed the application for certiorari and the stay application for a special appointment. Despite that listing, on 27 November 2000, the parties agreed that, entirely without prejudice to their rights, the plaintiffs would transfer the land to the defendant for the sum of $89,000. The transfer of the land went ahead and was registered on 1 December 2000.
8 On 25 February 2000, EM Heenan J decided that the plaintiffs' only remaining cause of action was a referral to the Court for determination of the proper purchase price of the land. His Honour determined the plaintiffs had accepted the consent order under a misapprehension of their rights to have the quantum of the purchase price determined. He set aside the order and ordered the parties to attend before a Case Management Registrar for further directions. On 14 March 2000, a status conference was adjourned sine die. On 2 May 2000, a case evaluation conference was also adjourned sine die.
9 On 19 July 2000 the plaintiffs, by chamber summons, applied for leave to amend their statement of claim. On 22 August 2000, Acting Principal Registrar Johnston referred that application to a Master for determination. On 22 November 2000, Master Bredmeyer decided that none of the causes of action were arguable, except the ground relating to determination of the value of the land transferred to the defendant under s 36(2b) of the Metropolitan Region Town Planning Scheme Act. On 29 November 2000, Master Bredmeyer ordered that pleadings be dispensed with and that there be a determination of the value of the land and the further payment, if any, to which the plaintiffs were entitled. The learned Master also made further programming orders to facilitate the matter being heard.
10 The matter came on again on 3 April 2001 before Acting Principal Registrar Johnston. Further programming orders were made, these orders dealing in particular with the exchange of experts' reports. These reports were to be completed and exchanged by 22 May 2001. The Registrar
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- gave either party leave to enter the matter for trial by 5 June 2001. It is to be noted that the learned Registrar's order was not mandatory - that is to say, there was no requirement that either party enter the matter for trial by the specified date. Rather, they were given leave to do so.
11 On 26 April 2001, the plaintiffs applied for an extension of time and leave to appeal against the decisions of Master Bredmeyer delivered on 13 August 1999 and 22 November 2000 (in FUL 68 of 2001). On 27 June 2001, Master Bredmeyer granted leave to appeal against his decision of 22 November 2000 and refused leave to appeal against his decision of 13 August 1999. Pursuant to the leave granted, on 5 July 2001 the plaintiffs served an order for leave to appeal against the decision of Master Bredmeyer delivered 22 November 2000. It would appear that no further steps have been taken in relation to that appeal.
12 A further status conference was convened on 12 February 2002. At that conference, Registrar S Boyle ordered that the time for exchange of experts' reports be extended to 12 April 2002. The learned Registrar also ordered that the matter be entered for trial no later than 4 July 2002. On 15 April 2002, the plaintiffs filed and served submissions and attachments in relation to the trial. This appears to have been done pursuant to orders made by Master Bredmeyer on 29 November 2000 as amended by Registrar S Boyle on 12 February 2002. On 31 May 2002, the defendant served experts' reports. These reports were served pursuant to the order of Master Bredmeyer made on 29 November 2002 as amended by Registrar S Boyle on 12 February 2002.
13 The plaintiffs did not enter the matter for trial by 4 July 2002, nor have they served any experts' reports. There is nothing in the affidavit material filed by either the plaintiffs or the defendant to indicate that the plaintiffs have obtained any expert evidence. In the context of an action such as this where the valuation of the land concerned is of prime importance, that is a significant fact.
14 On 8 August 2005, the defendant's solicitors wrote to the plaintiffs pointing out no action had been taken for some time. On 6 September 2005, the first-named plaintiff and a solicitor for the defendant discussed the matter. Nothing concrete was resolved, although the first-named plaintiff undertook to contact the defendant's solicitors when he had given the matter further consideration. That never happened. On 19 February 2007, the defendant's solicitors again wrote to the plaintiffs advising that they were instructed to have the matter struck out for want of prosecution. The first-named plaintiff then contacted a solicitor acting for the
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- defendant on 14 March 2007. Once again, nothing concrete came of these discussions, although it does appear that there was some general consideration of the issues outstanding between the parties. These discussions were the last contact between the plaintiffs and the defendant before the present application was issued.
15 When this application first came on for hearing, the first-named plaintiff appeared in person. He advised that the second-named plaintiff was suffering chronic illness and was resident in New South Wales. He sought the opportunity to file an affidavit explaining the delay in these proceedings and submissions outlining why the action ought not be dismissed for want of prosecution. I granted an adjournment for that purpose. The first-named plaintiff filed an affidavit sworn 16 July 2007. He also filed written submissions.
16 In his affidavit, the first-named plaintiff says that he did prepare "an entry for trial document". He attempted to file that document on 19 July 2002. He says he was informed by the Central Office that the documents were to be "left to be scrutinised". He says that he was advised that he would receive a reply within five to 10 days. Four weeks later, having heard nothing, he rang the Central Office to enquire when the documents were likely to be returned to him. He says that he was told that no date could be provided. Then, during the second week of September, he says he received a letter from the Principal Registrar advising that the entry for trial and certificate of readiness had to conform with Practice Direction No 4 of 1993. He was further advised that the Papers for the Judge had to contain certain additional documents including the statement of claim and the defence. (It is problematical whether these documents actually needed to be included, given that Master Bredmeyer had ordered that the matter proceed without pleadings.) Further, he was advised that the Papers for the Judge had to contain an index and have the pages numbered.
17 The first-named plaintiff says that he was "crestfallen" to have his papers rejected. He did attend the Supreme Court Library to find out what Practice Direction No 4 of 1993 said and he copied out its contents. He almost immediately misplaced that handwritten document. To compound difficulties, the first-named plaintiff appears to have misplaced or lost most of the documents and files that he had relating to the action. His affidavit gives no indication of what steps he might take from this point onwards.
18 The principles applicable on a strike out application have been considered in numerous cases. For present purposes, it is enough if I refer
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- to the decision of the Full Court of this Court in The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93. In their joint judgment, Steytler P and Owen JA said that the discretion to strike out was wide and unfettered. They identified a number of general principles which they said "will usually be relevant to the Court's decision to exercise the discretion" (at 26). These matters were the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action is left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay and the conduct of the defendant in the litigation.
19 Dealing with each of these matters in turn, there is no doubt that in this case there has been a substantial delay. The matter was commenced in 1999 and it should, pursuant to the orders of Registrar S Boyle made 12 February 2002, have been entered for trial by 4 July 2002. In other words, it should have been entered for trial five years ago. That is a lengthy delay and weighs against the plaintiffs.
20 There is really no explanation for the delay in progressing this matter. It is never easy for a litigant in person dealing with complex legal matters to wade through the sometimes arcane procedures required to have a matter listed for hearing. But in this case there were really only two steps that the plaintiffs had to take. They had to obtain expert evidence - without expert evidence it is difficult to see how they could pursue their claim. As I have said, that step appears not to have been taken and there is no explanation provided as to why it has not been taken. The second necessary step was filing the documents required to have the matter listed for hearing. Because of the order dispensing with pleadings, the documents which had to be filed were relatively simple and straightforward. It is true that the Court appears to have compounded any difficulty experienced by the plaintiffs by requiring the pleadings to be included in the Papers for the Judge. Even allowing for this complication, there is no explanation as to why the necessary papers could not have been filed in 2002, let alone in the years since.
21 There is no doubt that if this action is dismissed for want of prosecution, the plaintiffs face hardship. It would seem that their claim would be statute-barred. (There may be some doubt about this given the way this action has proceeded, but for the purposes of this application, I think it is proper to assume that the time bar would apply.) It is always a hardship to a plaintiff to be denied their day in court.
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22 There is no specific prejudice that the defendant will suffer if this action is allowed to proceed. Of course, whenever there is a delay in pursuing an action, a defendant suffers general prejudice. But this is a case which is about a valuation and it is clear that the defendant has obtained its expert evidence. There is no question of the memory of witnesses being impaired or relevant documents being misplaced. So, while I would accept that the defendant would suffer prejudice in a general sense, there is no specific prejudice to which the defendant can point. There is nothing in the conduct of the litigation by the defendant which could be said to have prejudiced the position of the plaintiffs.
23 On balance, I am satisfied that this matter ought not be struck out. On the one hand, favouring the defendant is the length of the delay and the lack of any real explanation for the delay. Favouring the plaintiffs is the fact of the hardship if this action is struck out, and the fact that the defendant will not suffer any actual prejudice if the action is allowed to proceed. In the balancing exercise, in my view, the interests of justice marginally favour the plaintiffs.
24 But the matter cannot be allowed to drift indefinitely. If the plaintiffs are to proceed, they ought proceed expeditiously. In my view, the best course is to refer the matter back to a Registrar to allow him or her to make further programming orders. The plaintiffs must be aware that if those programming orders are not complied with, then there is a real prospect of this action being struck out. The plaintiffs would do well to regard the indulgence granted to them as their last chance.
25 The plaintiffs should now approach the Case Management Registrar to have the matter re-listed for directions. Costs will be reserved.
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