Greenmount Constructions Pty Ltd v Diploma Construction Pty Ltd
[2009] WADC 107
•22 JULY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GREENMOUNT CONSTRUCTIONS PTY LTD -v- DIPLOMA CONSTRUCTION PTY LTD [2009] WADC 107
CORAM: REGISTRAR KINGSLEY
HEARD: 2 JUNE 2009
DELIVERED : 22 JULY 2009
FILE NO/S: CIV 209 of 2008
BETWEEN: GREENMOUNT CONSTRUCTIONS PTY LTD
Plaintiff
AND
DIPLOMA CONSTRUCTION PTY LTD
Defendant
Catchwords:
Practice - Application by plaintiff to remove action from inactive list - Consideration of case management principles
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
Plaintiff: Mr P W Van Der Zanden
Defendant: Mr C L Hollett
Solicitors:
Plaintiff: Hotchkin Hanly
Defendant: Bowen Buchbinder Vilensky
Case(s) referred to in judgment(s):
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Osgood v Wham [2007] WASCA 178
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
REGISTRAR KINGSLEY: By an application dated 8 May 2009 the plaintiff seeks orders that the action be removed from the inactive list and that the plaintiff have leave to list the matter for trial by 30 June 2009. The application is supported by an affidavit of Peter William Van Der Zanden sworn 8 May 2009 and a further affidavit of Mr Van Der Zanden sworn 22 May 2009.
Background
The plaintiff issued a writ in January 2008 claiming $222,011.58 pursuant to the terms of an agreement for sub‑contract work executed by the parties on or about 13 August 2004. No statement of claim were filed in time and the plaintiff brought an application for leave to file a statement of claim. On 11 April 2008 the plaintiff was given leave to file a statement of claim within 7 days. The statement of claim was filed on 15 April 2008.
The defendant filed and served a defence and counterclaim on 19 May 2008 and pursuant to r 46.4 District Court Rules ("DCR") the plaintiff was required to provide discovery within 60 days of the filing of that defence. The defendant contends that the plaintiff failed to do so.
The plaintiff was required to enter the case for trial on or before 16 September 2008 and in consequence of failing to do so a Form 2 – Notice of Default (Entry for Trial) was issued by the District Court on 17 September 2008.
On 19 September 2008 the plaintiff filed a chamber summons seeking amongst other things an order extending time to 2 April 2009 within which the plaintiff was required to enter the action for trial. Following an argued hearing the date for entry for trial was extended to 2 April 2009.
The plaintiff failed to enter the action for trial on 2 April 2009 and a further Form 2 – Notice of Default (Entry for Trial) was issued on by the District Court on 3 April 2009 requiring the plaintiff to enter the action for trial on or before 18 April 2009.
The plaintiff failed to enter the action for trial by 18 April 2009 and the effect is that the case has become inactive (r 44.2 DCR). Within time the plaintiff filed the present application.
The plaintiff's counsel in written submissions dated 27 May 2009 accepts there has been some delay, but submits the delay has been caused by both the plaintiff and the defendant. The plaintiff submits that the defendant delayed providing particulars of its defence and counterclaim, necessitating an application by the plaintiff for an order, and subsequently, an application for a springing order. The plaintiff's counsel accepts that there was delay in filing its affidavit of discovery and in the inspection of the defendant's discovered documents. The plaintiff's counsel submits that this is a result of inaction on the part of the solicitors for the plaintiff rather than the plaintiff itself.
The law
The defendant's counsel submits that the Supreme Court authorities in relation to case management can be applied to the District Court. The plaintiff's counsel submits that the case management regime in the Supreme Court is quite different and therefore a different set of legal principles would apply. Certainly pursuant to O 29A r 21 Rules of the Supreme Court ("SCR") if an action has been on the Supreme Court inactive cases list (see Pt 4 of O 29A) for six continuous months then the case is to be taken as being dismissed for want of prosecution. There is no similar rule in the District Court case management regime.
Both the SCR and the DCR provide for a system of case flow management. Order 1 r 4B SCR provides that a system of case flow management rule, to the extent that the resources of the court permit, be managed and supervised with the objects of, promoting the just determination of litigation, disposing efficiency of the business of the court, maximising the efficient use of available judicial and administrative resources, and facilitating the timely disposal of business at a cost affordable by the parties. Rule 24 DCR provides that a case management direction is a procedural direction that, in the court's opinion, is just to make in a case to facilitate the case being conducted and concluded efficiency, economically and expeditiously. Rule 24 DCR cover much of the same ground as O 29 r 2 SCR. The case management rules in both jurisdictions have a common foundation; although not an end in itself, the system of case management is to ensure that orders are made to enable the case to move forward to trial or ultimate resolution, and that the parties no longer dictate, at their whim, the pace at which a case moves. If a party is not able to comply with case management directions steps should be taken to remedy the non‑compliance and reprogramme the action. In my opinion as the foundation for case management in both the Supreme Court and District Court is the same, the Supreme Court authorities offer substantial guidance in relation to District Court actions.
As is often the case the starting point in relation to matters involving case management is the State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. Invariably the submission is that it is almost always an error of principle to fail to permit a litigant to litigate an issue that is fairly arguable, regardless of that litigant's non‑compliance with court procedures and orders. In Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 Steytler P reflected on JL Holdings (supra) and case management principles. Steytler P noted that JL Holdings involved the making of an amendment to a defence at a time where the amendment would jeopardise trial hearing dates, but in circumstances in which the litigant was not at fault, and the delay was explicable by the fact that the legal advisors had only recently discovered the point sought to be raised. Steytler P noted that JL Holdings did not involve a case of wilful disobedience of the court orders for ulterior purposes or even a case of repeated delays in complying with orders of the court.
Steytler P went on to comment that it is accepted that case management is not an end in itself and the ultimate aim of a court is the attainment of justice, which no principle of case management can be allowed to supplant [53].
Steytler P stated that JL Holdings does not mean that case management principles can be ignored and had earlier noted that McLure JA in Osgood v Wham [2007] WASCA 178 at [20] had pointed out that this misconceived view of JL Holdings had produced a culture in the legal profession in this State of non‑compliance with court rules, practice directions and court orders. Steytler P went on to say that a failure to comply with case flow management orders would be relevant and will be especially so if the failures are repeated and are deliberate and unexplained, or if there is no acceptable explanation for repeated deliberate failures.
Steytler P noted that in cases where there is no acceptable explanation for repeated deliberate failures the defaulting party runs grave risks. This is because, as Wheeler J pointed out in Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 at [87] it is an important consideration, although not the only consideration, that there is a need to ensure that orders of the court are not habitually disregarded.
The defendant's counsel submits that it is open to the court to find, as there has been no satisfactory explanation, that the plaintiff has simply ignored or disregarded the applicable rules and orders of the court. Further the defendant's counsel submits that the plaintiff's evidence does not disclose any explanation as to how far advanced the preparation of the plaintiff's case might be, nor is there a timetable for finalising matters of evidence and to enable the court to make an assessment as to when the action might be ready for trial: see Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 where Master Sanderson at [11] commented that some evidence should be advanced, on a plaintiff's application to have an action removed from the inactive cases list, that the party and its solicitors are committed to advancing proceedings, and that a timetable should be set, perhaps backed up by a springing order.
The defendant's counsel stops short of seeking summary dismissal of the action for failure to comply with orders of the court. It is sufficient to say that in cases of contumacy, or where a party has been persistently dilatory in taking steps in an action, or where, because of non‑appearance on interlocutory proceedings a party will not or is unlikely to take necessary steps to progress an action, there may well be an abuse of process. Where an abuse of process is found then, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands (Mariotti (supra), Steytler P, [55] ‑ [60]).
Conclusion
Mr Van Der Zanden's second affidavit attaches a copy of the plaintiff's affidavit of discovery which, as the action is presently inactive, the plaintiff has been unable to file. Mr Van Der Zanden deposes that he sought to inspect the defendant's discoverable documents but that the defendant's solicitors opinion was that as the action is inactive the plaintiff is not obliged to provide inspection. Further Mr Van Der Zanden in his second affidavit deposes that the parties were involved in disputes relating to the provision of further and better particulars.
The first and second affidavits do not provide a timetable nor is there an invitation to make programming orders to ensure the case progresses in an expeditious fashion (see Swick (supra) Sanderson M [9]).
Whilst the contemporary approach to court administration has introduced its own considerations, it is still a well established principle that the object of a court is to decide the rights of parties and not punish them for mistakes they make in the conduct of their case. Whilst there has been delay in the progress of this action, in my opinion the delays have not been such to warrant the permanent stay of the proceedings.
As the plaintiff has not proposed a timetable in my opinion the interests of justice are best served by the court imposing a timetable, if necessary supported by springing orders, to bring the action to a resolution, either by way of mediation or adjudication. I will hear counsel on the orders sought. My expectation is that both parties will provide the minute of orders as to outstanding issues and a date that the matter be entered for trial.
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