Fort v Pastoral Management Pty Ltd
[2016] WADC 51
•19 APRIL 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FORT -v- PASTORAL MANAGEMENT PTY LTD [2016] WADC 51
CORAM: GETHING DCJ
HEARD: 4 APRIL 2016
DELIVERED : 19 APRIL 2016
FILE NO/S: CIV 2644 of 2013
BETWEEN: GARY JOHN FORT
Plaintiff
AND
PASTORAL MANAGEMENT PTY LTD
First DefendantCOMPASS GROUP (AUSTRALIA) PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Summary judgment - When an action is commenced against an additional defendant for the purposes of the Limitation Act 2005 (WA) s 14
Legislation:
Limitation Act 2005 (WA) s 14
Rules of the Supreme Court 1971 (WA) O 8, O 16
Result:
Summary judgment awarded
Representation:
Counsel:
Plaintiff: Mr D M Bruns
First Defendant : Mr S G Daniells
Second Defendant : Mr P E Jarman
Solicitors:
Plaintiff: Rando Solicitors
First Defendant : Mills Oakley
Second Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323
Brearley v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Kelsh v Tobiassen [2009] WADC 124, (2009) 64 SR (WA) 231
Ketteman v Hansel Properties Ltd [1987] AC 189
La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201
Lois Nominees Pty Ltd v Hill [2011] WASC 53
Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208
Morgan v Banning (1999) 20 WAR 474
Mustac v Medical Board of Western Australia [2007] WASCA 128
Renovation & Finance Co Pty Ltd v Kott Gunning (A Firm) [2006] WASC 29
Seabridge v H Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496
Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
WMC Resources Ltd v Roche Mining Pty Ltd [2004] WASC 76
GETHING DCJ: On the evening of 19 December 2011 Gary John Fort, the plaintiff in this action, was injured at the premises of the Fortescue Roadhouse in Mardi, in the north west of Western Australia (Premises). By writ of summons filed 16 August 2013 he sued Pastoral Management Pty Ltd, whom he said was the occupier of the Premises, claiming damages arising out of the injuries he suffered. On 18 October 2013, Pastoral Management issued a third-party notice against Compass Group (Australia) Pty Ltd (Compass). Pastoral Management had appointed Compass to manage the Premises. In its defence filed on 21 October 2013, Pastoral Management pleaded that, if it did owe a duty of care as occupier to Mr Fort, it is not liable to Mr Fort on the basis that it had exercised reasonable care in appointing Compass to manage the Premises, relying on Occupier's Liability Act 1985 (WA) s 6. Compass entered an appearance in the third-party proceedings on 17 December 2013.
By ex parte notice of motion filed on 25 November 2014, Mr Fort sought leave to join Compass as a second defendant to the action (Application). In the 'tram lines' description, the Application is expressed to have been brought pursuant to Rules of the Supreme Court 1971 (WA) O 18 r 4 (RSC). An affidavit was filed in support of the Application by Asanka Gunasekera, sworn 25 November 2014. In the 'tram lines' description in this affidavit, the affidavit is expressed to be filed in support of an application brought pursuant to O 18 r 6. Mr Gunasekera was a solicitor employed by Mr Fort's then lawyers. In his affidavit, Mr Gunasekera referred to the 'impending expiration of the statute of limitations' in relation to the claim by Mr Fort (par 26).
At a hearing on 9 December 2014 Deputy Registrar Hewitt granted Mr Fort leave to join Compass as a second defendant to the action, and directed Mr Fort to file an amended writ of summons within 14 days. The amended writ of summons was filed on 11 December 2014.
The amended writ of summons, together with an amended statement of claim, was served on Compass under cover of a letter from Mr Fort's lawyers dated 28 July 2015.
On 7 August 2015 Compass entered a conditional appearance as the second defendant in the action.
On 27 August 2015 Compass filed an application for summary judgment against Mr Fort pursuant to RSC O 16 r 1. The application was brought within the time specified in RSC O 16 r 1(1). In support of the application, Compass filed an affidavit of Eve Rae Andrews, sworn on 27 August 2015. Ms Andrews is a solicitor employed by Compass' lawyers. This affidavit sufficiently verifies the facts on which the application is based to comply with RSC O 16 r 1(2).
In opposition to the application, Mr Fort filed two affidavits. The first was sworn on 10 March 2016 by Stephen Rando. Mr Rando is the principal of Mr Fort's current lawyers. The second was sworn on 8 March 2016 by Mr Gunasekera.
Compass asserts that it is entitled to summary judgment as Mr Fort's claim against it is precluded by the expiration of the relevant limitation period. It is common ground that the relevant limitation period is that in Limitation Act 2005 (WA) s 14 (LA), which provides that an 'action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued'. It says that Compass was joined pursuant to RSC O 18 r 6, and that the action against it was not 'commenced' for the purposes of LA s 14 until such time as it was served pursuant to RSC O 18 r 8(4)(a). This did not occur until the receipt by its lawyers of the letter from Mr Fort's lawyers dated 28 July 2015, well after the expiration of 3 years from the date of accrual of the cause of action on 11 December 2014.
Mr Fort opposes the application for summary judgment on three grounds. The first is that the order granting leave to join Compass was made pursuant to RSC O 18 r 4, which has the effect that Compass was joined when the order was made, and not at the point of service. The second is that for the purposes of LA s 14, the action against Compass was 'commenced' at the point in time the amended writ was sealed, being 11 December 2014. The third is that if, by operation of RSC O 18 r 8(4)(a), the action against Compass was not 'commenced' until it was served, the court has the power to waive the requirement of service pursuant to RSC O 2 r 1, which power should be exercised in favour of Mr Fort.
Four issues arise for determination:
•Pursuant to what power was Compass added as a party?
•Was the action against Compass commenced within the limitation period?
•If the action was not commenced until Compass was served pursuant to RSC O 18 r 8, can compliance with this requirement be dispensed with?
•What final orders are appropriate?
Pursuant to what power was Compass joined as a party?
Mr Fort says that Compass was joined as a party pursuant to RSC O 18 r 4. Compass says that RSC O 18 r 4 does not permit a defendant to be joined and that the relevant power is RSC O 18 r 6.
As I have noted, the Application was expressed to be pursuant to RSC O 18 r 4, whereas the affidavit in support was expressed to be for an application pursuant to RSC O 18 r 6.
The relevant part of RSC O 18 r 4 is sub-rule (1) which is in the following terms:
(1)Subject to rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where -
(a)if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and
(b)all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
The relevant part of RSC O 18 r 6 is sub-rule (2), which provides:
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party, but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.
The provisions of RSC O 18 r 4(1) deal with joinder at the outset of the action. The rule does not contain a power to add a party to an existing action: Lois Nominees Pty Ltd v Hill [2011] WASC 53 [23] – [84] (Beech J); Renovation & Finance Co Pty Ltd v Kott Gunning (A Firm) [2006] WASC 29 [38] – [46] (Jenkins J). Thus, leave to add Compass could not have been granted pursuant to RSC O 18 r 4. It could, however, have been granted pursuant to RSC O 18 r 6, which is what I determine has occurred. The description in the 'tram lines' in the Application is not determinative, and cannot in some way empower the court to make an order which it otherwise does not have the power to make.
I find that the order joining Compass as the second defendant was made pursuant to RSC O 18 r 6.
Was the action against Compass commenced within the limitation period?
Where leave is granted to join a defendant pursuant to RSC O 18 r 6, O 18 r 8(2) provides that 'the rules as to service of a writ of summons shall apply accordingly to service of the amended writ on him'. Sub‑rule 8(4)(a) provides that the person 'shall not become a party until … the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him'.
Compass submits that the issue of when time ceases to run for limitation purposes when a defendant is joined pursuant to O 18 r 6 was determined by O'Neal DCJ in Kelsh v Tobiassen [2009] WADC 124, (2009) 64 SR (WA) 231. His Honour held that time would only cease to run upon service of the amended writ. It is instructive to quote the entirety of the analysis by O'Neal DCJ [45] ‑ [51]:
45The relevant provisions of s 7(2) of the Fatal Accidents Act were considered by the Full Court of the Supreme Court of Western Australia in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232. The Full Court in Stevens (supra) held (at p 234) that the limitation provisions of s 7(2) are not merely procedural in character:
"…they do and have been held to condition the cause of action which is created by the statute so that unless the action is commenced within the prescribed period there is no cause of action at all."
46The appellant's submission is that the joinder of the appellant pursuant to O 18 r 6 does not take effect until the service of the amended originating process upon that defendant. They rely as authority for that proposition upon dicta of McLure J in Brandsma & Crockett Pty Ltd & Anor v Heindal Pty Ltd & Ors [2002] WASCA 96 at [26]:
"Order 18 r 6 gives the court the power to order … that any person who ought to have been joined as a party be added as a party. The joinder of a party under this order takes effect from the date of service of the originating process upon the newly added party: Morgan v Banning (1999) 20 WAR 474 at 481-482; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236 per Dawson J; Anthony Leslie John Woodings (as a receiver and manager of Elcos Australia Pty Ltd (in liq)) v Jay A Stevenson and Phillip G Jefferson (as liquidators of Elcos Australia Pty Ltd (in liq)) [2001] WASC 174 at par 25; Ketteman v Hansel Properties Ltd [1987] AC 189 at 198, 201, 209, 210 and 213."
47Of course when a fresh action is commenced against a defendant time ceases to run for limitation purposes when the writ is issued notwithstanding that the writ may not be served immediately. At least that would be the case if the action was brought within time or leave had been obtained in respect of a cause of action under the Fatal Accidents Act. There is an instinctual resistance to the idea that the position should be different where a fresh action is not commenced but instead a defendant is added as a necessary party in accordance with O 18 r 6.
48Resistance to the idea that there should be a difference between those two positions, both instinctual and reasoned, may be found in the decision of the Court of Appeal in Seabridge & Ors v H. Cox & Sons (Plant Hire) Ltd & Anors [1968] 2 QB 46, and in particular in the reasons of Lord Denning M.R. at pp 51 – 52.
49The Court of Appeal was there considering the effect of O 15 r 8(2) and r 8(4) of the English Rules which are relevantly the same as our O 18 r 8(2) and r 8(4). Lord Denning M.R. compared the procedure of joinder with the commencement of a fresh action. He said:
"It seems to me that when the amendment is made in the prescribed manner, namely, by the amendment being taken to the Central Office and filed and the amended writ stamped, then at that moment the amended writ takes effect as against the added defendant. That procedure is equivalent to the issue of a writ against an original defendant. Once the amendment is made, the rules as to service apply as against the added defendant, just as they do to an original defendant on the issue of a writ … The result is that the plaintiff has to serve the added defendant within 12 months from the date when the amendment is made."
50However, in Ketteman v Hansel Properties Ltd [1987] AC 189, in reasons which were unanimous on that point, the House of Lords overruled Seabridge (supra) and held that the plain words of RSC O 15 r 8(4) (our O 18 r 8(4)) meant that notwithstanding that an order has been made that a party be joined and the writ amended accordingly, it is only when the amended writ is actually served upon that party that they are effectively joined and time ceases to run for limitation purposes. While this aspect of the decision in Ketteman (supra) is obiter dicta as the appellant concedes, it is quite obviously in the category of reasoned and considered dicta to which considerable weight would ordinarily be given: Slack v Leeds Industrial Co-operative Society Ltd [1923] 1 Ch 431 at 451 per Lord Sterndale MR.
51While it does not appear to me that to date there has been any West Australian authority where the result turned on the resolution of the meaning of O 18 r 6 and r 8(2) and r 8(4), the dictum of the House of Lords in Ketteman has been embraced in obiter dicta in Brandsma v Crockett (supra) and subsequently Bainbridge v Lawton [2002] WASC 293. In those circumstances, and absent any argument that persuades me that the House of Lords was plainly in error in overturning Seabridge, I rely on the authority of Ketteman as set out in Brandsma v Crockett and Bainbridge (supra). It follows that in my view, time would only cease to run for limitation purposes when the appellant was effectively served. That of course assumes that the time for commencement of an action had not already expired. The effect of s 7(1) of the Fatal Accidents Act meant that here it had, unless leave to extend the time was obtained pursuant to s 7(2).
I am not bound by the decision in Kelsh. However, as a matter of judicial comity, a court of first instance will usually follow the decision of another judge of first instance unless convinced that the judgment was wrong: Mustac v Medical Board of Western Australia [2007] WASCA 128 [38] (Martin CJ, with whom Wheeler and Buss JJA agreed); La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204 (Burchett J).
Counsel for Mr Fort submitted that I should decline to follow the decision in Kelsh for three reasons.
The first reason is that O'Neal DCJ does not appear to have been referred to in the decision in Morgan v Banning (1999) 20 WAR 474, which contains dicta suggesting a contrary decision. The contrary decision is that a defendant is added when the amended writ is sealed. The decision in Morgan concerned the issue of a writ. Owen J held that an action is commenced for limitation purposes when the writ is issued (476). Wheeler J was of the same view, observing that limitation provisions are generally concerned with the date of issue of the writ (483). Ipp J agreed with Wheeler J.
It is manifest from the reasons of O'Neal DCJ that his Honour was aware that 'when a fresh action is commenced against a defendant time ceases to run for limitation purposes when the writ is issued notwithstanding that the writ may not be served immediately' [47]. So although O'Neal DCJ does not mention Morgan specifically, His Honour refers to the principle which counsel for Mr Fort seeks to draw from it. Moreover, His Honour goes on to note the apparent inconsistency between the position as regards writs and the position as regards a defendant joined pursuant to RSC O 18 r 6 [47].
The second reason is that the observations of McLure J in Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323, relied on in Kelsh, were not made in the context of considering when an action was 'commenced' for the purposes of LA s 4. Hence, the observations in Brandsma should not be taken to be determinative of the issue. The context of Brandsma was an application to amend the name of a party. At first instance, the application was made and granted under RSC O 21 r 5(3). The appellants contended that the Master at first instance erred in granting the amendment under RSC O 21 r 5(3) because it had the effect of substituting a new defendant. They argued that the application should have been made under O 18 r 6, and been rejected on the ground that the claims were statute barred. McLure J refused leave to appeal, holding that RSC O 21 r 5(3) gave the court the power to make the amendment sought [43]. The other member of the court, Murray J, came to the same conclusion [5] – [14].
In Kelsh, O'Neal DCJ correctly characterised the observations of McLure J from Brandsma as being obiter dicta [51]. However, the passage relied upon from the decision in Brandsma – 'the joinder of a party under this order takes effect from the date of service of the originating process' – recites the effect of RSC O 18 r 8(4)(a), which I have quoted above [17]. It was clearly open to O'Neal DCJ to rely on the observations of McLure J in support of the conclusion ultimately made. There is nothing I can discern in the decision in Brandsma suggesting that the position set out in RSC O 18 r 8(4)(a) does not govern when an action is 'commenced' for the purposes of LA s 14.
The third reason is that the reasoning or logic of Lord Denning in Seabridge v H Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46 is submitted to be applicable to the particular statutory context in the LA, notwithstanding that the decision was overruled in Ketteman v Hansel Properties Ltd [1987] AC 189. In Seabridge the amended writ adding a second defendant was sealed within the relevant limitation period, but served outside it. The relevant rule of court was in identical terms to RSC O 18 r 8 (4)(a): 'where … a person is to be added as a party … the person shall not become a party until … the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him': Seabridge (51). As noted in the passage quoted in Kelsh [49], Lord Denning held that at the moment the amended writ was stamped at the Central Office it took effect as against the added defendant (51 ‑ 52). Diplock and Salmon LJJ agreed.
In Ketteman, the House of Lords considered the issue of when an action was commenced for limitation purposes against a defendant who was added after the commencement of the action. The relevant court rule was in the same terms as in Seabridge and thus RSC O 18 r 8(4)(a). The Lordships overruled the decision in Seabridge as being wrongly decided: (199) (Lord Keith of Kinkel, with whom Lord Templeman, Lord Griffiths and Lord Goff of Chieveley agreed), (209) (Lord Brandon of Oakbrook). Lord Keith of Kinkel observed that 'the plain language of the rule must prevail' (199).
Counsel for Mr Fort also relied on the decision in Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337. In that case, Stephen J accepted that the court had a discretion under the relevant rules to renew a stale writ even after the limitation period had expired (340). His Honour observed that 'most conventional limitation of action statutes are concerned with the institution of proceedings within limited times after an event and not with the subsequent service of process' (340). The rationale for procedural requirements dealing with the time within which service may be effected is 'to ensure that defendants will not for an inordinate time be left in ignorance of claims against them' (340).
The decision in Van Leer was relied on by the Full Court in Brearley v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 to conclude that a stale writ is not a nullity, but is invalid for the purposes of service only, and that the court may treat the failure to extend a stale writ before service as an irregularity and waive it under RSC O 2 r 1: [10] (Malcolm CJ); [44] (Ipp J), [73] (Anderson J).
Counsel for Mr Fort submitted that the wording of the relevant limitation legislation in Ketteman – 'actions shall not be brought' (200) ‑ is different from the wording in LA s 14 – an 'action for damages… cannot be commenced'. He submitted that this difference makes the logic in Seabridge, Van Leer and Brearley preferable to the logic in Ketteman and Kelsh. This logic is that it is the sealing of the amended writ which is the event that causes a party to be joined.
However, in my view, the consistent theme through the decisions in Ketteman, Van Leer and Brearley is that it is left to the rules of court to determine when an action is commenced or brought. Thus, in Ketteman, Lord Keith stated (200):
A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action which is referred to must be the bringing of the action against that defendant in respect of that cause of action. … In my opinion there are no good grounds in principle or in reason for the view that an action is brought against an additional defendant at any earlier time than the date upon which that defendant is joined as a party in accordance with the rules of court. …
In Van Leer Stephen J (344) approved of the following observations to similar effect by Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496, 503:
It follows then that it is incorrect to talk about allowing a cause of action or a new cause of action to be set up after the expiry of the period of limitation. Once the writ is issued within the period, the Statute of Limitations is ousted or rather never comes into operation. It is not the statute, which the court must obey on what it thinks is its proper interpretation, but the rule of court which takes over then. That rule has the discretion built into it and that discretion is to be exercised judicially, indeed, but not fettered by inflexible prescriptions …
In Van Leer and Brearley, applying the rules of court had the outcome that the action could be taken to have been validly commenced as at the date the writ was originally filed (assuming the discretionary power to waive the irregularity was exercised). This position had effect for limitation purposes. In Ketteman and Kelsh, applying the rules of court had the outcome that the action was not validly commenced until the writ was served. This position was also given effect for limitation purposes.
For these reasons I am not persuaded that the decision in Kelsh is wrong. Indeed, had I been required to determine the issue without the benefit of the decision in Kelsh, I would have come to the same conclusion.
It follows that in order for an action to have been 'commenced' against Compass for the purposes of LA s 14, Compass was required to have been served with the amended writ.
If the action was not commenced until Compass was served pursuant to RSC O 18 r 8, can compliance with this requirement be dispensed with?
In the event that the court concluded that the action was not commenced against Compass until it was served with the amended writ, Mr Fort moved for an order pursuant to RSC O 2 r 1 that the court waive compliance with the requirement in RSC O 18 r 8(4)(a) in this case.
By parity of reasoning with the decisions in Van Leer and Brearley, in the context of the commencement of the action by writ, if RSC O 2 r 1 is capable in its ordinary application of generating the outcome that Compass became a party to the action when the writ was amended, then this will be given effect to for limitation purposes. Put slightly differently, the rules of court determine the date on which Compass was joined as a party, including remedial provisions such as RSC O 2 r 1.
RSC O 2 r 1 provides:
1.Non-compliance with rules
(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2)Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
The issue for Mr Fort is that there has not been a failure to comply with the requirements of the rules. It is the existence of 'a failure to comply with the requirements of these rules' which enlivens the jurisdiction in RSC O 2 r 1. RSC O 18 r 8(4)(a) was complied with as Compass was ultimately served with the amended writ. At no time was the amended writ irregular. Compass has been properly and regularly joined as a defendant. In order for the action to have been commenced for the purposes of LA s 14 before the expiration of the limitation period, RSC O 18 r 8(4)(a) would have to be amended to read as if the words 'and (if he is a defendant) has been served on him' were removed from the paragraph. In my view, there is no power in RSC O 2 to do so.
Accordingly, I am of the view that RSC O 2 r 1 does not give the court the power to waive compliance with RSC O 18 r 8(4)(a) to generate the outcome that Compass become a defendant when the amended writ was sealed.
What final orders are appropriate?
By RSC O 16 r 1(1), the court may enter judgment for a defendant 'if satisfied that the action is frivolous or vexatious [or] that the defendant has a good defence on the merits'. The onus is on Compass as the applicant to persuade the court that this is a case in which it is appropriate to award summary judgment: Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208 [34] (Beech J); WMC Resources Ltd v Roche Mining Pty Ltd [2004] WASC 76 [35] (Newnes M); Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424, 74,757 (Parker J, with whom Owen J agreed). The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane & Dawson JJ); SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20] (judgment of the court). It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ); SMEC [20].
On the material before me, Compass has persuaded me that it has a good defence on the merits to the action brought against it by Mr Fort, being that the action was not commenced against it within the limitation period set out in LA s 14. This is 'the clearest of cases': Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron and McHugh JJ). It is not a case in which the application of the limitation period depends on the facts which may ultimately be found following trial, such as the nature of the damage sustained by the plaintiff: Wardley (533). I have the high degree of certainty required as to the ultimate outcome of the action to make it appropriate to order summary judgment in favour of Compass in relation to the claim brought by Mr Fort.
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