Emirge Pty Ltd v De Coppi
[2024] WADC 83
•26 SEPTEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: EMIRGE PTY LTD -v- DE COPPI [2024] WADC 83
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 20 SEPTEMBER 2024
DELIVERED : 26 SEPTEMBER 2024
FILE NO/S: CIV 3822 of 2023
BETWEEN: EMIRGE PTY LTD
Plaintiff
AND
TONY DE COPPI
Defendant
Catchwords:
Practice and procedure - Proposed counterclaim filed after entry for trial - Whether leave to file counterclaim should be granted - Where defendant unrepresented - Principles to be applied - Considerations relevant to exercise of discretion
Legislation:
District Court Rules 2005 (WA), r 38A
Limitation Act 2005 (WA), s 13
Rules of the Supreme Court 1971 (WA), O1 r 4A, O 1 r 4B, O 18 r 2, O 20 r 4, O 20 r 19
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr A P Hershowitz |
| Defendant | : | In person |
Solicitors:
| Plaintiff | : | Paiker & Overmeire |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Culleton v Permanent Custodians Ltd [2018] WASC 251
Greg Rowe Pty Ltd v Hill [No 2] [2012] WADC 157
Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Nyoni v Patterson [2012] WASCA 171
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Re Rules of The Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tobin v Dodd [2004] WASCA 288
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
PRINCIPAL REGISTRAR MCGIVERN:
Introduction
The defendant, who is unrepresented, has sought the leave of the court to make a counterclaim in the proceedings, despite the action having been entered for trial.
For the reasons that follow, leave to file a counterclaim is refused.
Relevant procedural history
The plaintiff commenced the action against the defendant by a writ of summons filed on 2 August 2023, and filed a statement of claim on 31 August 2023.
The plaintiff is a builder and, in essence, claims against the defendant for monies said to be owed under a building contract:
(a)by which the defendant engaged the plaintiff to construct a residence for him at an address in Ellenbrook (residence);
(b)pursuant to which the defendant carried out works and issued progress payment claims to the defendant;
(c)in breach of which the defendant has made only part payment of the progress payment claims invoiced to him; and
(d)pursuant to which the unpaid portion of the progress payment claims (totalling $129,000) is owed to the plaintiff, plus interest a rate of 20% per annum.
The defendant, who is unrepresented:
(a)filed a memorandum of appearance on 18 August 2023; and
(b)has not filed a defence (so titled) but, on 20 October 2023, filed an affidavit in opposition to the summary judgment application (defence affidavit) which:
(i)responds to the plaintiff's claim (including by reference to the paragraph numbers of the statement of claim); and
(ii)by operation of an order made on 29 July 2024, now stands as his defence.
By chamber summons filed on 4 September 2023, the plaintiff applied for summary judgment.
On 8 November 2023, a judge dismissed the application for summary judgment and ordered both parties to file and serve affidavits of discovery by 22 November 2023 (discovery order), following which:
(a)the plaintiff gave discovery, but did not comply with the technical requirements for discovery on affidavit;
(b)the defendant did not file any list of documents verified by affidavit;
(c)a further order was made on 16 January 2024 (further discovery order) which required both parties to comply with the discovery order by 30 January 2024; and
(d)the plaintiff gave discovery on affidavit on 17 January 2024, but the defendant did not comply.
On the plaintiff's application, a self-executing order was made on 2 May 2024 to the effect that, unless the defendant complied with the further discovery order by 16 May 2024, judgment would be entered against him in the amount claimed by the plaintiff.
On 16 May 2024, the defendant filed an affidavit annexing four documents by way of discovery.
The plaintiff entered the action for trial on 21 May 2024.
The parties engaged in a pre-trial conference on 4 July 2024 at which the dispute did not resolve, and following which orders were made listing the action for a listing conference on Monday, 29 July 2024.
On Friday, 26 July 2024, the defendant filed an affidavit (counterclaim affidavit) with the stated purpose being:
Counter Claim containing unclaimed (un-invoiced) works completed at the construction site by the defendant and out of pocket expenses claim.
At the listing conference on 29 July 2024:
(a)the plaintiff objected to the purported counterclaim;
(b)I explained to the defendant that the time to make a counterclaim had expired and that, at this stage of proceedings (relevantly, being after entry for trial), further pleadings would require the leave of the court, which would in turn require an application for leave to be made; and
(c)I made orders including to the effect that:
(i)by 4 pm on 12 August 2024, the defendant was to file and serve any application for leave to file a counterclaim, that application to include a proposed minute of counterclaim;
(ii)any such application was to be heard at a special appointment on 20 September 2024; and
(iii)no later than seven days prior to the special appointment, each party was to file and serve any written submissions in relation to the application.
The defendant did not make an application within the time allowed but, on 14 August 2024, the defendant filed:
(a)a document entitled 'Counterclaim' (which I regard as a minute of proposed counterclaim); and
(b)a further copy of the counterclaim affidavit.
On 11 September 2024, the plaintiff filed an outline of submissions in opposition to the 'application' to file a counterclaim.
Application to adjourn the special appointment
At the special appointment:
(a)the plaintiff appeared by counsel and the defendant appeared in person;
(b)the defendant sought, in oral submissions, to adjourn the special appointment for at least seven days on the grounds that:
(i)the plaintiff filed their written submissions late;
(ii)he was entitled to file written submissions 14 days after the plaintiff filed their written submissions; and
(iii)he had not 'had [his] 14 days to put [his] submission in'.[1]
[1] ts 60, 20 September 2024.
I refused the adjournment because:
(a)contrary to the defendant's submission, the plaintiff did not file their written submissions late (indeed they were filed two days early);
(b)the order made on 29 July 2024:
(i)did not in fact require the filing of written submissions;
(ii)provided for the filing of any written submissions on the same day; and
(iii)was plain in its terms and operation;
and
(c)at the time of the hearing, the defendant had a reasonable opportunity to make oral submissions in support of the application, having had the plaintiff's written submissions (which articulates the issues raised in opposition) for over a week, and having heard their oral submissions.
Rules and issue for determination
The making of a counterclaim is dealt with in O 18 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC), relevantly as follows:
(1)[A] defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence.
(2)Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.
As appears from that provision, the time for making a counterclaim is pinned to the time for filing a defence, relevantly being 14 days from service of the statement of claim.[2] That time expired over a year ago.
[2] RSC O 20 r 4.
To the extent that additional time has been afforded for a defence to be filed, that time has also expired.
Of particular relevance, r 38A of the District Court Rules 2005 (WA) (DCR) has the effect that, after a case is entered for trial, no party may, without the court's leave, apply to file further pleadings.
By the order made on 29 July 2024, the defendant was given leave to make such application by 12 August 2024.
Although the documents filed by the defendant on 14 August 2024:
(a)are not articulated in terms of being an application, that character may be inferred; and
(b)were filed two days outside the time allowed, the plaintiff did not press any objection on that ground, and indeed has filed submissions in terms that respond to an application.
In the circumstances, I will proceed on the basis that this is an application for leave to file a counterclaim in terms of the document described at [14(a)] (proposed counterclaim).
The issue for determination is whether leave should now be granted to the defendant to file the proposed counterclaim.
Parties' positions
The proposed counterclaim is, in essence, in terms that:
(a)the defendant carried out carpentry works at the residence to the value of $58,509.50;
(b)the plaintiff failed to progress the build and the defendant terminated the contract with the plaintiff on 16 July 2023;
(c)the defendant incurred additional loan repayments of $1,100 per week:
(i)for a period of 22 weeks, being from the time of cessation of works to the date of termination (totalling $24,200); and
(ii)for a further period of 20.5 weeks, being a period of 'delay' arising from the engagement of a new builder and associated building approvals (totalling $22,550);
(d)the defendant incurred additional out of pocket expenses comprising payment of rent, rates, land taxes and utilities over the above periods of 42.5 weeks (totalling $36,909.92); and
(e)the defendant claims 'a total claim amount [of] $142,594.42'[3] plus '20% interest charges', against the plaintiff.
[3] I observe that this amount exceeds the sum of the amounts specified above by $425.00.
The defendant's counterclaim affidavit is in similar terms, but adds (at par 1) that the defendant 'did not invoice for the completed carpentry works at the time the works were carried out'.[4] Notwithstanding this, the annexures to the affidavit comprise purported invoices dated 19/12/22; 4/01/23; 10/01/23; 16/01/23; 20/01/23; and 31/01/23.
[4] This is consistent with the terms in which the 'purpose' of the counterclaim affidavit is described by the defendant: see [12].
The defendant's oral submissions, insofar as they were directed to the proposed counterclaim, were substantially to the same effect.
The plaintiff's submissions are, in essence, that the plaintiff opposes leave being granted to file the proposed counterclaim because:
(a)the application is made late in the proceedings, without adequate reason or any supporting evidence (although, in oral submissions, the plaintiff's counsel did not seek to place much weight on that submission);[5]
(b)the proposed counterclaim is 'manifestly defective' and capable of being struck out (and this was identified as the plaintiff's principal contention); and
(c)no further time should be allowed to the defendant to plead a competent counterclaim, noting that the defendant could bring separate proceedings against the plaintiff.
[5] ts 57, 20 September 2024.
Consideration
General principles and approach
I commence by noting that the court exercises very broad case management powers[6] which are properly to be exercised judicially and in accordance with the objectives of contemporary case management. The latter include:
(a)promoting the just determination of litigation;
(b)disposing efficiently of the business of the court; and
(c)ensuring that the applicable procedures are proportionate to the value, importance and complexity of the subject matter in dispute.[7]
[6] Under DCR r 24, and as an incident of its statutory jurisdiction: District Court of Western Australia Act 1969 (WA) s 50; Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 [9], [16]; Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [28].
[7] RSC O 1 r 4A, O 1 r 4B.
Further, the defendant is unrepresented and, as such, a degree of leniency and flexibility is proper. Nevertheless, the limits of any such accommodation are well recognised. I direct myself to the general principles applicable to the role of a judicial officer in civil proceedings involving an unrepresented litigant as set out in Tobin v Dodd,[8] including as follows:[9]
[T]he advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
Should leave to file a counterclaim be given?
[8] Tobin v Dodd [2004] WASCA 288 (Tobin) [13] ‑ [18]. See also footnote 12.
[9] Tobin [14].
It is plain that the proposed counterclaim is a 'further pleading' within the meaning of DCR r 38A.
That rule is directed to avoid late changes to the framework within which an action must be conducted,[10] such that there should be good reason to depart from it. However, it is not of course immutable and expressly contemplates that leave may be granted. Any application for leave should be approached:
(a)giving appropriate weight to the principles of contemporary case management; and
(b)in accordance with what justice requires, taking account of any likely prejudice to the applicant if leave is refused and any likely prejudice to the respondent if leave is granted.
[10] Including for example, the documents to be discovered and the evidence that may be led.
I observe that a counterclaim is not properly characterised as defensive in nature - rather, it is a separate but related claim made by a defendant against the plaintiff. Accordingly:
(a)from a case management perspective, the efficiency in having related claims heard and determined together must be weighed against the inefficiency of having any counterclaim raised late in the proceedings;
(b)as to prejudice, any prejudice occasioned to the defendant by refusing leave would be in the nature of depriving him of the opportunity to join his claim to the current proceedings rather than (subject to any other impediment, such as the expiry of a limitation period) depriving him of the opportunity to make the claim at all. That prejudice is to be weighed against the prejudice to the plaintiff occasioned by delay; and
(c)the merit of the proposed counterclaim is relevant to both the weight of any prejudice arising and to case management considerations. However, any assessment of merit must be generously made at so early a stage, without seeking to determine the claim.
In this case, I approach the question of merit on the basis of whether the proposed counterclaim is capable of serving the essential function of a 'further pleading', being to adequately identify the issues to be tried and to disclose an arguable cause of action.[11]
[11] See, for example: Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 (Gates) [24].
I consider that, even making appropriate allowances for the defendant being unrepresented,[12] the proposed counterclaim is devoid of the kind of certainty that would allow the plaintiff to properly understand the claim against it and is therefore not an adequate pleading.[13]
[12] Nyoni v Patterson [2012] WASCA 171 [36]; Culleton v Permanent Custodians Ltd [2018] WASC 251 [35]; Gates [57].
[13] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [5] ‑ [7]; Re Rules of The Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237 [31]; Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].
That is because the proposed counterclaim comprises assertions of loss and of right, but does not identify the facts necessary to establish the legal foundation of those claims. For example:
(a)there is no plea as to the source of an entitlement, by reference to the contract between the parties or otherwise, to claim against the plaintiff for carpentry work carried out by the defendant on his own property;
(b)to the extent that the defendant relies upon the 'invoices' annexed to the counterclaim affidavit, the defendant's own evidence is that invoices have not been issued to the plaintiff (or were not issued 'at the time'[14]), despite the documents bearing dates spanning December 2022 to January 2023;
(c)the source of any entitlement to claim against the plaintiff for land tax and utilities is not articulated; and
(d)there is no plea as to the source of an entitlement, by reference to the contract between the parties or otherwise, to claim interest at a rate of 20%.
[14] See [27].
The deficiencies in the proposed counterclaim make it liable to being struck out[15] and this weighs against leave being granted because:
(a)granting leave would give rise to even further inefficiency in the present proceedings because the defects in the counterclaim would need to be addressed; and
(b)there is little prejudice in denying the defendant the opportunity to file a claim that, as pleaded, is defective.[16]
[15] RSC O 20 r 19(1).
[16] See further, [45].
Further, I do not consider that leave to file a repleaded counterclaim is warranted for the reasons that follow.
Joinder of the counterclaim is not, on the face of it, necessary for the just determination of the present action.
Although the plaintiff did not strongly press their objection to the lateness of the proposed counterclaim in the proceedings, I consider that consideration to be relevant to the exercise of my discretion and so address it briefly here.
I note that:
(a)the action has been on foot for over a year and, despite responding to the statement of claim by way of the defence affidavit, the defendant did not articulate any counterclaim until the business day preceding the listing conference; and
(b)the defendant has put on no evidence to explain the delay in making or raising any counterclaim at an earlier stage in the proceedings, despite participating in several hearings, including two before judges of this court.
Given that the action has been entered for trial and the issue of a proposed counterclaim was first raised in the context of a listing conference, the objectives of efficient case management weigh against the application. Allowing the counterclaim now would require all interlocutory steps in the new proceeding to be completed and would significantly delay the trial of the plaintiff's action. The efficiency of having the claim and proposed counterclaim dealt with together has been substantially lost.
The delay, inconvenience and expense associated with granting leave are prejudicial to the plaintiff. As has been noted in this court:[17]
It has been recognised, and courts now take into account, the strain which litigation may place on the parties to it and the natural desire of most litigants to be freed from the anxiety, distraction and disruption which litigation causes. That is not a consideration limited to natural persons. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party …
[17] Greg Rowe Pty Ltd v Hill [No 2] [2012] WADC 157 [41], citing The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 170; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [100] ‑ [101].
Weighed against those considerations is any likely prejudice to the defendant if the counterclaim is not allowed. Considering the dates of the purported invoices annexed to the counterclaim affidavit and the nature of the proposed counterclaim:
(a)it appears likely (without deciding this point) that the general limitation period[18] would apply and, therefore, that the defendant would not be 'shut out' of litigating his counterclaim if leave were refused; and
(b)accordingly, I do not regard the refusal of leave to be materially prejudicial to him.
[18] Limitation Act 2005 (WA) s 13.
Conclusion
Leave to file a counterclaim in the action is refused. The application is dismissed.
Costs ordinarily follow the event and, subject to hearing from the parties, I am inclined to follow that usual course in relation to the application.
I will hear submissions as to the precise terms of the order that should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ER
Associate to Principal Registrar
26 SEPTEMBER 2024
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