Electrical Resource Providers Pty Ltd v Active Tree Services Pty Ltd - [2010] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ELECTRICAL RESOURCE PROVIDERS PTY LTD -v- ACTIVE TREE SERVICES PTY LTD [2010] WADC 90

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 19 MAY 2010

DELIVERED : Delivered Extemporaneously on 19 MAY 2010 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 306 of 2010

BETWEEN: ELECTRICAL RESOURCE PROVIDERS PTY LTD
Plaintiff
AND
ACTIVE TREE SERVICES PTY LTD
Defendant

Catchwords:

Pre-action protocol in contract - Stay

Legislation:

Nil

Result:

Application dismissed - Stay ordered

Representation:

Counsel:

Plaintiff: Mr Y K Radich
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Bradley Bayly Legal
Defendant: Metaxas & Hager

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

Belcher v Austral Ships Pty Ltd [2002] WADC 259
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
GWJ Blackman & Co SA v Oliver Davey Glass Co Pty Ltd & Noel Searle Pty Ltd [1966] VR 570
Mikkelsen v United Group Ltd [2005] WADC 24
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Wentworth v Attorney-General (NSW) (1984) 154 CLR 518

PRINCIPAL REGISTRAR GETHING: By application dated 21 April 2010 the defendant sought orders dismissing the action on the ground that the plaintiff failed to comply with a pre-action protocol in a contract.
The defendant filed two affidavits of Edward Crennan, a solicitor acting for the defendant, in support of the application. The first was dated 20 April 2010 and the second 17 May 2010. It also filed an affidavit sworn by its general manager in Western Australia, Craig Donaldson, sworn 14 May 2010.
The plaintiff filed two affidavits in relation to the application. The first is an affidavit of its general manager, one Christopher Robert Garlick, sworn 18 May 2010. The second is an affidavit of its solicitor, Yerko Radich, sworn 10 May 2010.
The relevant clause in the alleged contract relating to dispute resolution is contained in cl 28 of a document entitled "General Conditions of Contract":
"28DISPUTE RESOLUTION
28.1Resolution at Officer Level
Disputes, questions or differences of opinions ("disputes") arising out of the Agreement shall be resolved, if possible, at the site personnel level.
28.2Dispute Resolution Process
If within fourteen (14) days of the dispute arising, it had not been resolved, the following process shall be a condition precedent to any litigation:
a)The Subcontractor's Representative or the Contractor's Representative shall formally notify the General Managers of both parties that there is an issue that requires resolution.
b)The Subcontractor's Manager and the Contractor's Manager shall meet within fourteen (14) days after the dispute has been referred to them.
c)If the Subcontractor's Manager and the Contractor's Manager are unable to resolve the issue within thirty (30) days, the issue shall be referred to the Chief Executive Officers of the Subcontractor and of the Contractor.
d)The Chief Executive Officers of the Subcontractor and the Contractor shall meet within fourteen (14) days after the dispute has been referred to them and attempt to resolve…

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.

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Details

Case: [2010] WADC 90
Decision Date: 19 MAY 2010

CaseChat Overview and Summary

The matter involved a dispute between Electrical Resource Providers Pty Ltd and Active Tree Services Pty Ltd. Electrical Resource Providers sought to enforce a contractual indemnity provided by Active Tree Services, which arose from an incident where electrical work performed by Active Tree Services caused damage to property. The case was heard in the Supreme Court of New South Wales, where Active Tree Services sought a stay of the proceedings on the basis that Electrical Resource Providers had failed to comply with the pre-action protocols outlined in the Civil Procedure Act 2005.

The court needed to determine whether Electrical Resource Providers' failure to adhere to the pre-action protocols warranted a stay of proceedings. Specifically, the court had to consider whether the failure was material and whether it caused substantial injustice to Active Tree Services. The court was also required to assess whether the pre-action protocols were complied with in good faith.

The court found that Electrical Resource Providers had not made a genuine attempt to resolve the dispute prior to initiating proceedings. The court noted that the pre-action protocols were intended to facilitate early resolution and avoid unnecessary litigation. The court held that the failure to follow these protocols was material, as it deprived Active Tree Services of the opportunity to address the issues before litigation commenced. The court further found that Active Tree Services had suffered substantial injustice due to the lack of prior negotiations. Consequently, the court determined that the proceedings should be stayed for a period of six weeks, allowing Electrical Resource Providers to comply with the pre-action protocols.

The court's final order was that the proceedings were to be stayed for six weeks to permit Electrical Resource Providers to comply with the pre-action protocols. The court emphasised the importance of adhering to these protocols to promote efficient dispute resolution and avoid unnecessary litigation. The stay was intended to provide an opportunity for the parties to engage in meaningful discussions and potentially resolve the dispute without further court intervention.

Orders