DURFEN Pty Ltd v Jr Engineering Services Pty Ltd - [2002] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DURFEN PTY LTD -v- JR ENGINEERING SERVICES PTY LTD & ANOR [2002] WADC 49

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 18 FEBRUARY 2002

DELIVERED : 13 MARCH 2002

FILE NO/S: CIV 2360 of 1999

BETWEEN: DURFEN PTY LTD
Plaintiff
AND
JR ENGINEERING SERVICES PTY LTD
First Defendant
TERRY CONTIPODERO
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for dismissal for want of prosecution - Action subject to stay - Case Management

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     Ms N L Hall
Second Defendant         :     Ms N L Hall

Solicitors:

Plaintiff:     No appearance
First Defendant             :     Freehills
Second Defendant         :     Freehills

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By the action the plaintiff claims delivery up of computer software, damages for detention of the software and damages under the Trade Practices Act.
The application for determination is that brought by the defendants to have the action dismissed for want of prosecution. The onus is upon the applicants.
On 27 October 1999 the following order was made:
"1.Within 21 days of the date of this order, the plaintiff do provide security in the amount of $5000 by way of bank guarantee or by deposit of $5000 into an interest bearing account in the joint names of the Parties' Solicitors.
2.The proceedings be stayed until such payment is made by the plaintiff as ordered in paragraph 1.
3.The question of additional security of costs be adjourned to a date subsequent to the last pre-trial conference."
From the affidavit of the applicants' solicitor it is apparent that the plaintiff did provide security by way of bank guarantee on 2 June 2000 however the terms of that guarantee were such that by 5 November 2000 there was no security in place.
When the parties were brought before the court on 26 March 2001 on a summons for directions issued by the court, a further order was made in the following terms:
"The Plaintiff's action be stayed until the Plaintiff do provide security in the amount of $5000 by way of bank guarantee or by deposit of $5000 into an interest bearing account in the name of the Parties' Solicitors."
I would accept that it might be contended that the order is ineffective as to the provision of security, however there can be no doubt that it was the intention of the court that the action be stayed.
It is appropriate to consider that where a plaintiff brings an action on what appears to be a valid cause that the court would be slow to intervene so as to preclude the determination of the issues between the parties. It is after all the institution whose function it is to resolve intractable disputes. The effect of a stay is significant. It is evident that in making the order the court shared the concern of the defendants that they may have to meet the costs of their successful defence of the action and that prospect ought properly be given priority over the expectation of the plaintiff that the court would determine the dispute presented on the pleadings.
It is my understanding that the applicants contend that justification for the exercise of discretion to dismiss the action is found in the plaintiff's failure to satisfy the order for security, alternatively the prospect that if the action if proceeded to trial at some later time the defendants may be prejudiced, alternatively that the plaintiff is in breach of the "caseflow management principles".
Even if the order of 26 March 2001 had been differently expressed so as to require the plaintiff to provide security it is unlikely that anyone would seriously contend that properly considered the failure to do so would qualify as contumelious.
The test for considering whether an action ought otherwise be dismissed for want of prosecution should focus upon whether the prospect of a fair trial has been significantly compromised. For so long as there is a real prospect of a fair trial there should be no proper basis for the court to remove itself from its role.
I do not suggest that as a result of delay prejudice may not be occasioned to all parties however in my opinion it takes little imagination to see that the primary impact of any such prejudice will be felt by the plaintiff. Furthermore if this case ever proceeds to trial there is a real prospect that the defendants' costs will be secured.
Furthermore what is considered to constitute a fair trial may properly take into account the fact in relation to at least contested allegations of material fact raised by the plaintiff the onus is on the plaintiff. A fair trial may properly take into account the prospect that the consequences of any delay attributable to the plaintiff may be visited upon the plaintiff.
The onus is on the applicants. In the absence of evidence as to prejudice it is difficult to see that the court would have sufficient basis to conclude that the prospect of a fair trial had been diminished.
I accept that to expect that an applicant would give evidence as to the prospect or extent of prejudice may be seen as being unrealistic. In my opinion no more unrealistic than the prospect that the court would exercise discretion simply because an applicant submits that the passing of time generates prejudice. The scope for proper recourse to the result sought by the applicants is indeed limited.
There is nothing automatic about the process by which the court would come to exercise jurisdiction to order security for costs. In making such an application and in light of the usual terms of such an order it is appropriate to consider that a defendant would reflect upon the consequences of potentially impeding the plaintiff's progress in the action. It is not inappropriate to consider that as much as the information available to a potential applicant may justify resort to an application, and as much as the court may be persuaded that the provision of security was appropriate, that the plaintiff may indeed have limited financial resources and that the operation of any stay may endure for some considerable period. At some time, even perhaps as late as the time when it ought to be apparent that the action might be significantly delayed it is appropriate to consider that a party would take the precaution of fully proofing its witnesses and monitoring their movements so as to reduce the prospect of prejudice. It would be a brave, perhaps foolish litigant who failed to take such steps either because of the stay or the reason for the stay being implemented as it could be lifted at any time. It would not be inappropriate to consider that these defendants would have taken that precaution.
Some of the energy of the applicants was devoted to the prospect that the court would reflect on the failure of the plaintiff to progress the action to trial. In my opinion, in light of the stay a difficult task.
I accept that in advancing that submission the applicants may have been confounded by the fact that on 20 December 2001 an order was made that the parties file certificates of discovery no later than 25 January 2002.
The filing of certificates of discovery by parties is a means by which the court monitors actions for the purposes of case management. A certificate of discovery would certify that discovery has been provided and that the documents so discovered had been made available for inspection within 14 days thereafter.
That order required action to be taken which would be contrary to the stay. In my opinion it is properly considered to be unenforceable and effectively meaningless.
By the application the applicants suggest that there are principles which support case management. There is no principle that supports case management. Case management is simply a strategy implemented by the court to encourage the expeditious progress of actions to trial. The suggestion that the mechanisms by which the strategy is manifested amount to principle suggests either hyperbole or confusion on behalf of the applicants.
It remains to be considered whether the timetable established by case management demonstrates whether this action is being progressed at less than a satisfactory rate. One only needs to state the proposition to see that as a consideration in this application it is irrelevant. As to other data, the action was commenced in mid 1999 and the cause of action may have arisen as long ago as mid 1997. Neither of the dates is so long ago as to cause any particular concern. The significant datum is that there is no limitation issue which arises but for with respect to one basis for relief.
In my opinion there is no reason to consider that it would be appropriate to strike out the action for want of prosecution.