Fourmi Pty Ltd v Commissioner for Consumer Protection - [2017] WASCA 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FOURMI PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2017] WASCA 69

CORAM: NEWNES JA
MITCHELL JA

HEARD: 6 APRIL 2017

DELIVERED : 6 APRIL 2017

FILE NO/S: CACV 18 of 2017

BETWEEN: FOURMI PTY LTD
Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1330 of 2014

Catchwords:

Practice and procedure - Whether appeal has reasonable prospect of succeeding - No procedural step in action for 12 months - Case taken to be inactive under Rules of the Supreme Court 1971 (WA), O 4A r 24 - Not put on Inactive Cases List by Principal Registrar - O 4A r 25(1)(a) - Whether case taken to have been dismissed for want of prosecution under O 4A r 28 - Whether failure of Principal Registrar to put case on Inactive Cases List can be rectified under O 2 r 1

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 4A r 24, O 4A r 25(1)(a), O 4A r 28

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D K Barker
Respondent: Mr G D Cobby

Solicitors:

Appellant: Chalmers Legal Studio
Respondent: Consumer Protection Legal Unit

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

Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Leighton v Garnham [No 4] [2016] WASC 134
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58
West Australian Newspapers v Fairhead [2013] WASCA 151

JUDGMENT OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

This is an appeal from a decision of Master Sanderson who granted an application by the respondent (plaintiff) for leave to administer interrogatories to the appellant (defendant). The master rejected a preliminary contention by the appellant that the application was futile because the action had been dismissed for want of prosecution pursuant to O 4A r 28 of the Rules of the Supreme Court 1971 (WA). The appellant contends that the master erred in finding that the action was still on foot.
As the appeal is from an interlocutory order, the appellant requires leave to appeal: Supreme Court Act 1935 (WA), s 60(1)(f).
The appeal comes before the court on the respondent's application, dated 9 March 2017, for an order that the appeal be dismissed, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that the ground of appeal has no reasonable prospect of succeeding.

Background

On 10 March 2014, the respondent commenced proceedings against the appellant in the Supreme Court by a writ of summons endorsed with a statement of claim. In the statement of claim, the respondent pleaded that the appellant had at all material times operated a caravan park in Gosnells called 'Riverside Gardens Estate.' The respondent alleged that in the course of operating the caravan park the appellant had engaged in unconscionable conduct, contrary to s 21 of the Australian Consumer Law (WA), and sought, among other things, a declaration to that effect, a pecuniary penalty pursuant to s 224 of that Act, the repayment of certain money received by the appellant from tenants of the caravan park, and other relief.
The appellant entered an appearance on 14 March 2014 and, on 3 April 2014, directions were made by a registrar for the filing of the defence, any reply, and for discovery and inspection of documents. The appellant's defence was filed on 14 April 2014. On 2 May 2014, the respondent filed a request for further and better particulars of defence and an amended statement of claim. The respondent's affidavit of discovery and list of documents was filed on 8 May 2014.
At a directions hearing on 21 May 2014, directions were given by consent for the filing and service of an amended defence, further and better particulars of defence, the appellant's discovery, and for inspection of discovered documents. The appellant's amended defence and discovery were duly filed.
On 9 June 2014, the respondent filed a supplementary list of documents.
A dispute subsequently arose in relation to the adequacy of the appellant's discovery, leading ultimately to an application for particular discovery which came before the master on 18 November 2014. Orders were made requiring the appellant to discover some additional documents by 30 January 2015. An affidavit and list of documents was filed by the appellant on 30 January 2015.
On 7 May 2015, the appellant requested further and better particulars of the statement of claim.
At that point, the proceedings ground to a halt until, on 2 and 3 February 2016, the respondent caused subpoenas to be issued to a company, Lifestyle Village Concepts Pty Ltd, and two individuals, requiring each of them to produce certain documents to the court on or before 19 February 2016.
On 3 November 2016, the respondent applied to the master for leave to serve interrogatories on the appellant. The application was opposed by the appellant on the ground, among others, that the action stood dismissed by the operation of O 4A r 28(1).
The relevant provisions are contained in O 4A Div 5 and are as follows:
21.Term used: Inactive Cases List
In this Division -
Inactive Cases List means a list of inactive cases kept by the Principal Registrar under rule 25.
…
24.Cases inactive for 12 months deemed inactive
If no procedural step is taken in a case for 12 months by any party to the case, the case is taken to be inactive unless the case manager for the case orders otherwise.
…
25.Parties to be notified of case being on Inactive Cases List and to advise clients
(1)When … a case is taken to be inactive under rule 24, the Principal Registrar must -
(a)put the case on the Inactive Cases List; and
(b)give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 26.
(2)As soon as practicable after being notified under subrule (1), the practitioner for a party to the case must notify the party of -
(a)the fact that the case is on the Inactive Cases List and why; and
(b)the effect of rule 26.
26.Consequences of case being on Inactive Cases List
(1)If a case is on the Inactive Cases List, only these documents may be filed in the Court in relation to the case -
(a)a summons for an order under rule 27(1);
(b)a notice of discontinuance by the plaintiff under Order 23 rule 2;
(c)an application for leave made by the plaintiff or the defendant under Order 23 rule 2;
(d)a written consent under Order 43 rule 16 to the making of an order that would finally dispose of the case.
(2)If the plaintiff or defendant in a case on the Inactive Cases List files an application for leave under Order 23 rule 2, the Court may grant leave under that rule even though the case has not been removed from that list.
(3)If a written consent is filed under Order 43 rule 16 to the making of an order in a case on the Inactive Cases List that would finally dispose of the case, the Court may make the order even though the case has not been removed from that list.
27.Removing cases from the Inactive Cases List
(1)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(2)The Court may order that the case be taken off the Inactive Cases List if satisfied that the case will be conducted in a timely way or for other good reason.
(3)An order that the case be taken off the Inactive Cases List may include any conditions necessary to ensure that the case is conducted in a timely way.
28.Certain inactive cases to be taken to have been dismissed
(1)A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
…
(3)If under subrule (1) or (2) a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact.
The respondent's application came before the master on 9 February 2017. On the hearing of the application, the appellant acknowledged that the Principal Registrar had not put the case on the Inactive Cases List, or given the parties written notice that the case was on the Inactive Cases List or that it had been dismissed. It was submitted, however, that that did not defeat the operation of O 4A r 28(1). The appellant expressly accepted that such a contention was contrary to the decision in Timcal Pty Ltd v Sons of Gwalia Ltd[No 2] [2011] WASC 58 and that the court would follow Timcal. Subject to its contention that the action stood dismissed, the appellant made separate submissions opposing the grant of leave to interrogate.
The respondent submitted that the request for particulars on 7 May 2015 and the subpoenas issued by the court on 2 February 2016 were procedural steps within the meaning of O 4A r 24, so that the case was not taken to be inactive under that rule.
The master gave very brief ex tempore reasons on this point in which he expressed agreement with the decision in Timcal and concluded that the action had not been dismissed. Leave was given to the respondent to serve certain of the proposed interrogatories.

The ground of appeal

The sole ground of appeal is as follows:
On the preliminary question of whether or not the action stands dismissed for want of prosecution the learned Master applied [Timcal] which judgment should not be followed or [should be] overruled as the learned Judge erred in law in finding at [22] that the Court giving notice under Order 4A rule 25(1) is a pre-condition to the operation of Order 4A rule 28(1).

Disposition of the application

Notwithstanding both the reasons given by the master for concluding that the action had not been dismissed and the ground of appeal, Timcal is not directly on point. In Timcal, the case had been put on the Inactive Cases List by the Principal Registrar but notice under O 4A r 25(1)(b) advising of that was not given. The question that arose was whether the giving of notice under O 4A r 25(1)(b) was a precondition to the operation of O 4A r 28(1). Le Miere J found at [22] that it was (cf Leighton v Garnham [No 4] [2016] WASC 134 [43]).
In this case, however, it is common ground that the case was never put on the Inactive Cases List. The question that therefore arises, anterior to the question in Timcal, is whether O 4A r 28(1) operates in circumstances where, under O 4A r 24, a case is taken to be inactive but, contrary to r 25, the Principal Registrar has not put the case on the Inactive Cases List. In our view, in such circumstances O 4A r 28(1) can plainly have no operation.
It is clear that a case is not 'on the Inactive Cases List' simply because no procedural step has been taken in a 12‑month period so that, under O 4A r 24, the case is taken to be inactive. It is clear that the 'Inactive Cases List' is not a reference to a notional list of all cases in which no procedural step has been taken in a 12‑month period but refers to an actual list kept by the Principal Registrar. When no procedural step has been taken in a case in a 12‑month period, r 25(1)(a) requires the Principal Registrar to 'put' the case on that list; that is, to 'place, insert or enter' it on the list (The New Shorter Oxford English Dictionary, 1993). If that is not done, the result is that the case is not on the Inactive Cases List: West Australian Newspapers v Fairhead [2013] WASCA 151 [26], [27]. Plainly enough, if a case is not on the Inactive Cases List, it cannot be taken to have been dismissed under r 28(1) by the effluxion of time on that list.
On the appeal, the appellant sought to circumvent that difficulty by submitting that the failure of the Principal Registrar to put the action on the Inactive Cases List was an irregularity under O 2 r 1(1) that could be cured by the court under O 2 r 1(2) - albeit, without saying how it might be cured. That submission cannot be accepted.
Order 2 r 1(1) provides, in effect, that where in beginning, or at any stage in the course of or in connection with, any proceedings there has been a failure to comply with the requirements of the rules, 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 in the proceedings. Under O 2 r 1(2), where there has been such a failure the court has wide powers to set aside, in whole or in part, the proceedings in which the failure occurred or any step, document, judgment or order in the proceedings, or to allow an amendment and make orders 'dealing with the proceedings generally as it thinks fit'.
The purpose of O 2 r 1(1) is to do away with the old distinction between a failure to comply with the rules which made a proceeding or step a nullity (which could be neither waived nor cured by the court) and one which was an irregularity (which could): Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729; The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [48]. Accordingly, by virtue of O 2 r 1(1), a failure to comply with the rules does not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in the proceedings, but is to be treated as an irregularity which O 2 r 1(2) gives the court a discretion to set aside.
O 2 r 1(1) prevents an irregular proceeding, or a step in a proceeding, from being treated as a nullity. It does not deem an omitted step in a proceeding to have been taken merely because the step was required by the Rules. In this case, there has been no failure to comply with the rules that might be cured under O 2 r 1(2) of the Rules. The appellant alleges that the Principal Registrar failed to comply with the Rules by failing to put the case on the Inactive Cases List. O 2 r 1 does not deem the Principal Registrar to have put the case on the Inactive Cases List when she has not done so, even if the Rules required that step to be taken, and O 2 r 1(2) does not enable the court to retrospectively put a case on the Inactive Cases List. O 4A r 28 does not operate unless a case is on the Inactive Cases List, and O 2 r 1 does not affect that precondition to the operation of O 4A r 28.
In the circumstances, it is unnecessary to determine the challenge in the ground of appeal to the decision in Timcal. The point does not arise. Nor is it necessary to consider whether any procedural step had been taken in the action in the period of 12 months prior to the respondent's application to serve interrogatories. Again, the point does not arise.

Conclusion

The ground of appeal has no reasonable prospect of succeeding and accordingly leave to appeal should be refused and the appeal dismissed.