GM Carmody Holdings Pty Ltd v Primaries of WA Pty Ltd - [2020] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GM CARMODY HOLDINGS PTY LTD -v- PRIMARIES OF WA PTY LTD [2020] WADC 9
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   15 JANUARY 2020
DELIVERED          :   30 JANUARY 2020
FILE NO/S:   CIV 3239 of 2019
BETWEEN:   GM CARMODY HOLDINGS PTY LTD
Plaintiff
AND
PRIMARIES OF WA PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to strike out writ - Conditional appearance - Requirement for conferral

Legislation:

District Court Rules 2005 (WA)
Supreme Court Rules 1971 (WA)

Result:

Indorsement struck out

Representation:

Counsel:

Plaintiff	:	Mr P Brunner
Defendant	:	Mr F A Robertson

Solicitors:

Plaintiff	:	Bailiwick Legal
Defendant	:	Patane Lawyers - Perth

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

ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd [No 3] [2015] WADC 37

DEPUTY REGISTRAR HEWITT:

By writ filed on 27 August 2019 the plaintiff commenced proceedings against the defendant by way of a writ which contained the following indorsement of claim:
GM Carmody Holdings Pty Ltd claims loss and damages, interest, costs and such other relief as this Court may deem appropriate arising from:
(a)a breach of contract dated in or about September 2012 between Primaries of WA Pty Ltd, as agent, and GM Carmody Holdings Pty Ltd, as principal; further or alternatively
(b)breach of a duty of care owed by Primaries of WA Pty Ltd, as agent, to GM Carmody Holdings Pty Ltd, as principal, to provide advice and services for the best interests of GM Carmody Holdings Pty Ltd; further or alternatively
(c)breach of a fiduciary duty owed by Primaries of WA Pty Ltd, as agent, to GM Carmody Holdings Pty Ltd, as principal, to not prefer Primaries of WA Pty Ltd’s own interests to the interests of GM Carmody Holdings Pty Ltd,
in respect to advice and services provided by Primaries of WA Pty Ltd to GM Carmody Holdings Pty Ltd in the period on and from September 2013, where such advice and services by Primaries of WA Pty Ltd was:
(a)in breach of the contract to provide goods and services; further and alternatively;
(b)negligent by reason of the breach of a duty of care owed; further and alternatively;
(c)in breach of the fiduciary duty owed to GM Carmody Holdings Pty Ltd.
A memorandum of conditional appearance was filed to that writ on 7 October 2019, together with a chamber summons to strike out the writ of summons and set aside service. The basis of the application was the proposition that the indorsement on the writ failed to satisfy the requirements of the Rules of the Supreme Court 1971 (WA) (RSC) and as a consequence it was appropriate for the writ to be struck out and service of the writ to be struck out.
Unsurprisingly, that application was opposed and the matter came before me for hearing on 15 January 2020.
Submissions were filed by both the applicant and the respondent, those for the applicant contending that the indorsement of the writ was manifestly inadequate lacking a factual matrix which would give the reader some grasp of the facts and circumstances which gave rise to the cause of action being pursued.
As will be seen from the indorsement of claim it appears to allege by way of factual background that a contract was entered between the plaintiff and the defendant in or about September 2012. That contract was breached by the defendant on and following September 2013 and in a manner which is not described. Additionally, that there was a breach of a duty of care owed by the defendant to the plaintiff and, finally, a breach of a fiduciary duty, again owed by the defendant to the plaintiff.
Nowhere is there any information about what acts comprised the various breaches complained of or when they occurred. It is, however, clear that whatever the events were and whatever the damages which might have been suffered by the plaintiff by the alleged breaches took place on and from September 2013 which gives a range of temporal possibilities of approximately six years.
Order 6 r 1 of the RSC set out the basic requirements which must be met in an indorsement of claim. That order is in the follow terms:
Order 6 r 1 of the RSC is in the following terms:
1.Nature of claim etc. to be indorsed on writ
(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In case of non‑compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.
The basic requirement of an indorsement of claim has received the attention of the Court of Appeal in ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235. The principal judgment was delivered by McLure J with which Wheeler J concurred. The relevant paragraphs within the decision which I reproduce below are [7] - [11]:
7This application raises for consideration the information which must be included in an indorsement to satisfy the requirements of O 6 r 1 and O 20 r 19 of the SCR. The minimum requirement has to be assessed in the context of the functions of an indorsement of claim in a writ. It has three functions two of which are related. Firstly, it marks out the perimeter within which a plaintiff may frame the statement of claim. Pursuant to O 20 r 2(2) of the SCR:
A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, the facts giving rise to a cause of action so mentioned.
8If a statement of claim or a proposed amendment exceeds the indorsement, the statement of claim should be struck out or the amendment refused unless the indorsement is amended: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 238.
9Secondly, an indorsement in a writ has important limitation ramifications.  The Limitation Act 1935 is concerned with the date of issue of the writ.  Provided a writ is not a nullity, amendments can be made to a defective indorsement on the writ if the terms of the writ are wide enough to encompass the proposed amendments as they particularise, clarify or expand a cause of action already instituted:  Morgan v Banning (1999) 20 WAR 474; O 21 r 5(5) SCR. An open ended or otherwise defective indorsement may be relied on to the advantage of a plaintiff who seeks to amend its writ and then its statement of claim after the expiry of the limitation provided.
10Thirdly, an indorsement also provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action.  However, it is not intended to be in the nature of a pleading but only a summary of the nature of the claim:  Renowden v McMullin (1970) 123 CLR 584 at 595.
11The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula.  Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.
(footnotes omitted)
In my view, it is clear, that the indorsement on the present writ is inadequate and, I therefore turn, to the argument which has been advanced by the plaintiff in opposition to the application.
The primary argument advanced by the plaintiff is that the application should be dismissed in view of the failure of the defendant to confer. In my view, it is clear that there was not significant conferral or indeed any conferral by the defendant before bringing the application. It is therefore necessary to consider the basis upon which the application was brought.
That is to be found in O 12 r 6 of the RSC which is in the following terms:
6. Conditional appearance
(1)A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule.
(2)The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.
It is to be noted that it is a requirement on the defendant to forthwith apply to have the question raised by the conditional appearance determined, and there is a limit of time within which the issue can be raised failing which the conditional appearance becomes unconditional and the opportunity to pursue the challenge is lost.
That provision suggests that the process of conferral were it to be undertaken by the applicant would expose the applicant to considerable risk since if the process was delayed whilst the plaintiff sought instructions or for any other reason, there is an excellent chance that the horse would have bolted before the application was mounted.
In the plaintiff's submissions reliance is placed O 59 r 9 of the RSC which prohibits the making of an order on an application unless the process of conferral has taken place or a court waives the requirement for conferral. That rule, however, has no application to the District Court being specifically excluded by r 29 of the District Court Rules 2005 (WA) (DCR). There is, however, within the DCR r 22 which is in the following terms:
22. Summonses for matters in chambers
(1)Before filing a summons to be dealt with in chambers the parties to the summons must, in good faith, attempt to resolve as many of the issues giving rise to the summons as possible.
(2)A person filing a summons to be dealt with in chambers must include in the summons or file with the summons -
(a)a certificate that the parties to the summons have conferred about the issues giving rise to the summons and have not resolved them; or
(b)a certificate that the parties to the summons have not conferred about the issues giving rise to the summons and the reasons why they have not conferred.
It will be seen that the District Court rule is not framed in the same draconian manner as the Supreme Court rule. Whilst the District Court rule does not contain a reference to waiving its application there are nonetheless examples of decisions of judges of this court in which the failure to confer is not regarded as determinative of the outcome of an application. In particular, I refer to the decision Sweeney DCJ in Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd [No 3] [2015] WADC 37 [4] and following in which her Honour said:
The defendant's application to strike out the claim for want of prosecution
(a)Failure to confer
4 Order 59 r 9 of the Rules of the Supreme Court 1971 (SCR) provides:
(1)No order shall be made on an application in chambers unless the application was filed with a memorandum stating -
(a)that the parties have conferred to try to resolve the matters giving rise to the application; and
(b)the matters that remain in issue between the parties.
(2)The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
5The section is not complied with unless the parties have orally conferred by telephone, or face to face (see Civil Practice Western Australia vol 1 Kendall & Curthoys ed; LexisNexis Butterworths (the Red Book) [59.9.1]).  If a party seeks that the requirement be waived by the court, it should file an application together with a memorandum containing a brief statement of the facts relied upon to support the waiver.
6The Rules of the District Court 2005 (DCR) also provide for conferral by r 22 which provides:
(1)Before filing a summons to be dealt with in chambers the parties to the summons must, in good faith, attempt to resolve as many of the issues giving rise to the summons as possible.
(2)A person filing a summons to be dealt with in chamber must include in the summons or file with the summons -
(a)a certificate that the parties to the summons have conferred about the issues giving rise to the summons and have not resolved them; or
(b)a certificate that the parties to the summons have not conferred about the issues giving rise to the summons and the reasons why they have not conferred.
7The purpose behind both rules is obviously precisely the same.  They serve to reduce unnecessary interlocutory disputes that might have been resolved had the parties only conferred or, if not resolved, at least resulted in a narrowing down of the issues to be ruled upon by the court.  The requirement for conferral is there for very good reason and should not generally be waived.
8On the other hand, the court should not insist upon compliance where, to do so, would only result in the same application being filed again following conferral between the parties, incurring further delay and unnecessary cost.
9In this case the defendant neither conferred, nor filed an application in the proper form asking the court to waive the requirement for conferral.  The closest it came to conferral was to warn the plaintiffs' solicitors that, should they make application for leave to amend their statement of claim yet again, it would likely be met with an application to strike the claim out for want of prosecution.
10After a deal of prompting by the court, the defendant's counsel did eventually make an oral application that the court both waive the requirement for conferral and waive the requirement for such an application to be made in writing accompanied by a memorandum.
11It is fair to say that, had the defendant complied with its obligation to confer, the plaintiffs would not have consented to the action being struck out. It is equally plain that there is no concession that the plaintiffs could have made that would have satisfied the defendant.  No amount of conferral could have narrowed down the issue to be determined.
12The only prejudice claimed by the plaintiffs' counsel is that, had the defendant conferred, the plaintiffs may have arranged to have their application to amend their statement of claim heard first.
13The matter of listing is of course a matter entirely for the court and, provided the defendant actually filed its application in time, the likelihood is that the two applications would have been heard together in any event. Indeed there was some behind the scenes scrapping between the parties with the registry as to which application should be heard first. It matters not in which order they are heard, in that, in any event, the court is being asked to determine the defendant's application in the knowledge that the plaintiffs seek to amend their statement of claim, and vice versa.
14I see no practical purpose in insisting upon compliance with the rules by way of conferral between the parties. Were I to dismiss the defendant's application on that basis, there would be nothing to stop it simply complying with the rules and then filing an identical application. In those circumstances, the court waives compliance with the requirement for conferral and the requirement to file a written application to that effect.
(footnotes omitted)
I take the view that failure to confer was merely an irregularity and her Honour's decision indicates that a sensible and practical approach should be taken to issues of this kind bearing in mind the objectives which are intended to be achieved by the operation of the rule.
In the present case it seems to me that the dispute between these parties was not capable of being resolved by conferral. The defendant sought to have the writ struck out on the basis of its inadequacy. It is very difficult to imagine that the plaintiff would agree to such an outcome, nor indeed, is the plaintiff likely to have agreed to amend the indorsement in way which might well have some significant limitation act consequences in regard to whatever cause of action is intended to be pursued by the plaintiff to this action.
In short, therefore, I see that there was no utility in attempting to secure some kind of agreement between the parties prior to the filing of the application because the interests of the parties were so diametrically opposed. I see support to that proposition in the enthusiasm with which the plaintiff defended the application and the fact that the principal plank of that defence was the failure to confer.
Again, I hark back to the strictures which are placed on a party that wishes to file a conditional appearance and the time limitations which apply. The process of conferral by an applicant in the circumstances which existed in this case is fraught with difficulty and danger. Were the plaintiff's solicitors, for instance, to be unable to or sluggish in obtaining the plaintiff's instructions, there is a good chance that the applicant/defendant might well of been squeezed to the point that the application failed simply by delay.
In those circumstances, I think it entirely appropriate that the failure to confer should be overlooked as a mere irregularity and in light of the fact that I consider the indorsement of claim to be completely inadequate I propose to strike the indorsement out.
Once again, that is a practical outcome because it is clear to me that this plaintiff intends to pursue the action and were I to strike out the writ it would just cause unnecessary delay and expense, which is easily avoided by taking the course which I have outlined.
In my view, for limitation purposes the date of the commencement of the action will be calculated from the date upon which a properly indorsed writ is filed and, therefore, if the defendant has a limitation defence it will not be impeded by the approach I have taken.
In conclusion, therefore, I order that the indorsement of claim on the writ filed by the plaintiff be struck out and that the plaintiff be at liberty to file a further writ with a satisfactory indorsement of claim within 14 days of the delivery of this decision.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
22 JANUARY 2020