Goldsmith v Prime Health Pty Ltd - [2004] WADC 248

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GOLDSMITH -v- PRIME HEALTH PTY LTD & ANOR [2004] WADC 248

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 8 NOVEMBER 2004

DELIVERED : 10 DECEMBER 2004

FILE NO/S: CIV 2317 of 2001

BETWEEN: IAN JAMES GOLDSMITH
Plaintiff
AND
PRIME HEALTH PTY LTD
First Defendant
ANDREW SMITH
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to withdraw unconditional appearance and to strike out action - Action issued without leave contrary to O 5 r 9 - Onus - Consideration of exercise of discretion - Default of plaintiff - Delay - Prejudice

Legislation:

Rules of the Supreme Court of Western Australia 1971, O 2 r 1(2), O 5 r 9, O 12 r 6, O 23 r 1

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr L Gandini
First Defendant              :     Mr D Bristol
Second Defendant         :     Mr M S Van Brakel

Solicitors:

Plaintiff:     Chapmans
First Defendant              :     Murcia Pestell Hillard
Second Defendant         :     Clayton Utz

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: On 22 March 2004 the second defendant filed a memorandum of appearance in the action. By application filed on 5 October 2004 he seeks leave to withdraw that appearance and an order that the writ be set aside. Each part of the application is opposed. The onus is on the applicant.
Order 23 r 1 Rules of the Supreme Court provides unfettered discretion to grant leave to withdraw an appearance. In considering the exercise of discretion it is appropriate to recognise that by filing and serving a document a party in an action represents a commitment to be bound by its content. By the appearance the defendant left no scope for raising any issue as to service of the originating process.
The context in which the appearance was filed reveals that the defendant's solicitors were aware that the defendant had been served with the writ in the United Kingdom. They immediately made enquiry as to whether the writ was stale. I do not know the result of that enquiry but on all of the indications it was stale. The fact that the appearance was filed suggests that there would have been other considerations that bore on the determination that it be filed. At the very least I should not ignore the prospect that the defendant made an informed decision in filing the appearance. In the usual case filing an appearance is simply a matter of precluding the entry of judgment in default. In this case, it stood for more.
It also stood for some six months prior to the date of the application. Time accumulated over that period is properly given consideration as delay on behalf of the defendant in making the application. The affidavits say nothing to account for that period of inactivity on the subject of the issue now before me. During the period in each of the months of July and August the defendant appeared in chambers on the hearing of the plaintiff's application to consolidate the action with another. Other that the plaintiff was unsuccessful I know nothing of what transpired at the hearing. Be that as it may, I consider that the following observations are appropriate: the applicant's appearances indicate that his solicitor's file did not lay dormant; he would properly be taken to have appreciated that the appearance founded the audience accorded to him; and the issue then before the court would have gone beyond any issue as to service to the merits of the case.
As much as the affidavits filed in support of the application are silent as to the reason for the appearance being filed they say nothing as to why it is that it is sought to be withdrawn. By way of observation I do not appreciate that it would necessarily be the case that success or failure in the first part of the application has any bearing upon the result of the second part. Tempting as it may be to investigate the plaintiff's conduct at times prior to the appearance being filed it seems to me that would put the cart before the horse. There is nothing in what I have canvassed that would motivate the court to consider acting so as to negate the defendant's voluntary act. That conclusion demonstrates that the onus has not been discharged.
The defendant contends that the writ ought be set aside as it was issued against him without leave of the court in breach of O 5 r 9. The rule provides that a writ for service outside the jurisdiction shall not be issued without leave.
The defendant's solicitor gives evidence that the defendant took up permanent residence in the United Kingdom in January 1997 and has been resident there since that time. I do not know what to make of the contention as to permanent residence. From an evidentiary point of view it is no more than an unfounded conclusion in a context where the applicant bears the onus and where there would appear to be no difficulty in him providing evidence. Regardless of those considerations, if it was intended to convey something about either residency over a period or future intention it does not address either prospect at the time the writ issued. At that time it is conceivable that the defendant may either have been in Australia or wherever located, contemplating a change of residency permanent or otherwise.
As he has chosen not to give evidence I know nothing of either the plaintiff’s knowledge of the whereabouts of the defendant or his intentions in relation to service at the time that the writ issued. It would be easy to come to the conclusion that the plaintiff be tested as to what was then his knowledge and intention. If it was apparent that at the point of issuing the writ the plaintiff had misled the court it may be considered to be appropriate to require the plaintiff to provide an explanation. There is nothing that suggests that prospect. Indeed the indications are all to the contrary. When issued the writ named four defendants. The address of each defendant was specified as being in the State of Western Australia, although in the case of the applicant it is given as being care of the first defendant. It is apparent that the plaintiff sought to serve the defendant shortly after being informed of the defendant's then current address at a time some two years and six months later. The indications are that upon the issue of the writ the plaintiff was unaware of the defendant's whereabouts and that remained the case until informed by the defendant's solicitors.
Absent the prospect the court had been misled, in my opinion it would be unusual to require any party to file an affidavit in any application. It is for the parties to determine how to run their cases. In the application the plaintiff carries no onus other than to found any submissions that he choses to make. It is for the defendant to satisfy the court that upon the issue of the writ the plaintiff was aware that the defendant was not within the jurisdiction or perhaps in terms of the rule, would not be served within the jurisdiction. I make that observation despite the real prospect that the defendant is unlikely to be aware of the state of the plaintiff's knowledge at the relevant time. Any departure from the proposition that a party seeking to rely on a fact should provide evidence of that fact ought be sustainable as a matter of general application. It is of no consequence that in any particular case an applicant in pursuit of an adverse result for the respondent may be portrayed as disadvantaged in establishing his case. I am not aware of any special consideration that arises in the context of the hearing of an application of this nature. The defendant he takes the case as he finds it. In my opinion on the evidence before the court the defendant could not discharge the onus.
If it is considered that the consequence of the failure of the plaintiff to provide evidence should somehow resound against him it is a matter of considering the appropriate impact of that failure. If it is to be properly considered that he issued the writ in circumstances where leave ought first have been obtained, as much as the defendant contends that O 2 r 1 (2) applies, the plaintiff relies on r 1 (1). It provides that the effect of non-compliance with the rules is no more than irregularity. It is for the defendant to establish a satisfactory basis to consider that non-compliance with the rules should carry a consequence more significant than irregularity.
The significant point made by the defendant was that the issue addressed by O 5 r 9 was fundamental to the power to adjudicate on the cause of action upon which the claim is founded. Unless at the point of issuing the writ the court is satisfied that it has jurisdiction over a claim in an action, the writ is appropriately set aside. The fact that he had entered an appearance could not confer such jurisdiction. That said, O 12 r 6 contemplates the defendant bringing a strike out application having entered a conditional appearance. By an appearance in that form he is not taken to have submitted to the jurisdiction of the court. The import of the appearance in this case is arguably that the defendant accepted the jurisdiction of the court to determine the action.
The context in which the application is considered is that which currently pertains: that is, the defendant having entered an appearance, the plaintiff having filed a statement of claim, the application having been made after the defendant's active involvement in the case and some six months after the appearance was filed. Of course none of those considerations have a direct bearing on the issue of jurisdiction, each only bears upon the decision as to whether one would exercise discretion in a manner adverse to the plaintiff.
The first feature of that context is the appearance. It establishes the commencement of the defendant’s engagement with the action. It commences the period during which the process of the issue of the writ, if considered in the absence of an application such as that before me, would have been considered to be irregular.
By the statement of claim the plaintiff alleges that the breaches contended for occurred within the jurisdiction. Although a pleading is not evidence, none the less it stands for two relevant propositions. It expresses the plaintiff’s claim and the court properly concludes that it contains no allegation of material fact that the pleading party did not at least expect that it could establish at trial. I might add that taking into account the breaches contended for it is unlikely that at trial there would be any controversy as to the allegations and relevant facts that go to the matter of jurisdiction. Perhaps for what it is worth I would add that the defendant did not submit that the court would not have jurisdiction to determine issues that bear upon the alleged breach of contract or duty of care contended for in the writ. In my opinion the significant point is that on all of the indications this is not a case where the court would have any particular concern as to jurisdiction at any level other than the appropriateness of the plaintiff’s action.
I might add that it is also evident from the correspondence attached to the defendant's solicitor's affidavit that the allegation that the applicant was a medical practitioner and that he practiced in the State of Western Australia at the material date has some resonance. Consideration of those features of the application along with the plaintiff's allegations generate the perception that he would not have been bewildered upon being served with a writ issued out of a court in this jurisdiction.
The next is the defendant’s active involvement in the case, which I have already canvassed in relation to the first part of the application. That engagement over the period of six months provides scope for considering that the defendant ought to have given the issue now raised some earlier attention. Which brings me to the last point. I accept that the defendant is entitled to raise the issue of jurisdiction at any point. Be that as it may, it is appropriate to consider that the court would expect that the issue would be raised if not at the earliest time, at an early time. That is, prior to the expiration of a period of six months. During that period the result of the plaintiff’s default has been irregularity.
The effect of a breach of the rules being considered as irregularity is not expressed to be relief available in a limited context. Indeed in the absence of the imposition of some other consequence it is the result that would apply. There is no reason to consider that the consequence expressed in r 1 (1) should not apply in circumstances where the court may be concerned either that the party in default has failed to acknowledge default or where the court might conclude that an explanation was called for but had not been provided.
In the event that the writ was set aside it appears that any fresh action commenced by the plaintiff may be met with a limitation defence. In providing for such a defence it was obviously the intention of the legislature to protect defendants from old claims. The defendant's evidence is that he does not remember the plaintiff and that he will not have access to records. That evidence suggests that something may be made of the prospect that any trial may not be fair or the defendant would be prejudiced. In my opinion those considerations are more significant than those that bear upon the prospect that the writ be set aside for failure to obtain leave for its issue. I would add that jurisdiction to dismiss a case prior to trial is available in limited circumstances. It is for the defendant to bring a case within the proper scope of an exercise of discretion on that basis. The application does not seek such relief. The defendant did not seek to construct a particular period or periods of delay. To the extent that the defendant’s case for prejudice may rely on loss of notes there is no evidence as to when notes were lost.
It seems to me that in the absence of any evidence of deliberate transgression there could be no justification for jumping to the conclusion most adverse for the respondent. To do so would be akin to imposing a penalty.
In my opinion much as the defendant has failed to meet the evidentiary onus he also fails to meet the onus of persuasion on any consideration of the exercise of discretion. On each of the points that I have considered there could be no basis for any impetus towards the result sought by the defendant.