Greg Rowe Pty Ltd v Hill [No 2] - [2012] WADC 157

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GREG ROWE PTY LTD -v- HILL [No 2] [2012] WADC 157

CORAM: DAVIS DCJ

HEARD: ON THE PAPERS

DELIVERED : 7 NOVEMBER 2012

FILE NO/S: CIV 3520 of 2010

BETWEEN: GREG ROWE PTY LTD
Plaintiff
AND
CHRISTINA ISABELLE SARAH HILL
First Defendant
JULIA LOUISE HILL in her capacity and as trustee for the Platill Trust
Second Defendant

Catchwords:

Practice and procedure - Orders previously made for the setting aside of default judgment against defendants on conditions - Failure by defendants to comply with conditions - Application for extension of time within which to comply with conditional orders and to vary orders - Principles on an application to extend time for compliance with conditional orders - Principles relating to unrepresented litigants - Merits of the defendants' defence and counterclaim - Further information provided on quantum of defendants' claim against the plaintiff - Earlier settlement of the claim with another tortfeasor - Release of that tortfeasor operates as a release of the plaintiff

Legislation:

Rules of the Supreme Court 1971 O 3 r 5

Result:

Defendant's application dismissed

Representation:

Counsel:

Plaintiff:     Mr A Rowe
First Defendant             :     In person
Second Defendant         :     In person

Solicitors:

Plaintiff:     Rowe Bristol Lawyers
First Defendant             :     Not applicable
Second Defendant         :     Not applicable

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
Deloitte Touche Tohmatsu v Cridlands Pty Ltd [2003] FCA 1413; (2003) 204 ALR 281
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Greg Rowe Pty Ltd v Hill [2012] WADC 104
Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398
Mees v Sherwood Nominees Pty Ltd t/as Wovodich Engineering [2009] WADC 65
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Nau v Kemp & Associates Pty Ltd t/as Active Working Solutions [2010] NSWCA 164; (2010) 77 NSWLR 687
Osgood v Wham [2007] WASCA 178
Rajski v Scitec Corporation Pty Ltd (Unreported, New South Wales Court of Appeal, Kirby, Samuels, Mahoney JJA, 16 June 1986)
Ruffino v Grace Bros Pty Ltd [1980] 1 NSWLR 732
Semenov v Pirvu [2011] VSC 605
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tobin v Dodd [2004] WASCA 288

DAVIS DCJ: On 5 July 2012, I allowed the defendants' appeal from a decision of the deputy registrar made on 3 October 2011 dismissing the defendants' application to set aside a default judgment entered against them by the plaintiff on 4 August 2011. My reasons for the decision in the appeal and the orders which I made are contained in Greg Rowe Pty Ltd v Hill [2012] WADC 104. Given the history of these proceedings and in order to do justice to the plaintiff, I ordered that the default judgment be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WADC 157
Decision Date: 7 NOVEMBER 2012

CaseChat Overview and Summary

Greg Rowe Pty Ltd brought an action against the Hill defendants, seeking damages for loss and injury sustained by the plaintiff's employee, Mr Rowe. The Hill defendants were later joined as defendants in an amended statement of claim. The plaintiff obtained default judgment against the Hill defendants who appealed the decision. The appeal was dismissed and the Hill defendants applied for the judgment to be set aside on conditions. The plaintiff brought an application for an extension of time within which to comply with the conditional orders and to vary the orders, and the Hill defendants opposed the application. The court was required to determine whether the Hill defendants had provided a satisfactory explanation for their failure to comply with the conditional orders, and whether the plaintiff's application for an extension of time should be granted. The court considered the circumstances in which the orders were made, the reason for non-compliance, the prejudice to the defaulting party if the time were not extended, the prejudice to the other party if the time were extended, and the merits of the action. The court found that the Hill defendants had not provided a satisfactory explanation for their failure to comply with the conditional orders. The court also found that the Hill defendants were well educated and had been involved in court processes for some time. The court further found that the merits of the action were not devoid of merit, as the Hill defendants had provided further information on the quantum of their claim against the plaintiff. The court concluded that justice required that the plaintiff's application for an extension of time be granted. The court made orders varying the conditional orders, extending the time within which the Hill defendants were to comply with the orders, and requiring the Hill defendants to pay into court a sum of money.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The court does have the power to extend time for compliance with a conditional order, even though the time for compliance has expired: see O 3 r 5 of the Rules of the Supreme Court 1971, FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 and Mees v Sherwood Nominees Pty Ltd t/as Wovodich Engineering [2009] WADC 65 [31] – [36]. The principles to be applied on an application to extend time in this situation were set out by Master Newnes (as he then was) in MTQ Holdings Pty Ltd v Lynch [55], [56]. While that case dealt with an application to extend time for compliance with the terms of a springing order, the principles in my view would extend to any order made on conditions. The factors to which the court will normally have regard are:1.The circumstances in which the order came to be made.2.The reason for non‑compliance with the order.3.The prejudice to the defaulting party if the time were not extended.4.The prejudice to the other party if the time were extended.5.The merits of the action (or defence and counterclaim), there being no point in resuscitating a case that is devoid of merit. There is not one factor or set of factors which is prescriptive of a particular result. All relevant matters must be balanced and the weight to be given to each will depend on the circumstances of the case. Ultimately in considering the exercise of the discretion, the question must be asked 'what does justice in all its notions or sense of it that are relevant, require in the circumstances of this case?': Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398 [103], [150], [166]; MTQ Holdings Pty Ltd v Lynch [50]. The circumstances in which I made the orders of 5 July 2012 are set out fully in my reasons for decision in the appeal, which I have summarised above. The only reason for non‑compliance provided by the defendants relates to the failure to comply with the order for payment into court and is set out in the letter from the second defendant accompanying the chamber summons of 10 September 2012 where she said:We now realise that this should have all been submitted together but we are not lawyers and are having to currently represent ourselves due to the financial situation … After enclosing the application, the second defendant went on to say:If these are successful, we will be seeking litigation funding to take this forward.I request that you take into consideration our situation and inability to afford a lawyer when assessing whether to allow this chamber summons. I am not able to accept the explanation that the defendants did not realise that 'this should have all been submitted together'. In my reasons for decision in the appeal [122] I addressed each of the defendants' health and I made findings relating to the defendants' education, intelligence, ability to function and make meaningful submissions. The defendants are both well educated and have been involved in court processes in this action now for some time. Both defendants have shown that they have the capacity to understand these legal proceedings. They have previously filed applications by way of chamber summons while they have been unrepresented – in fact, the second defendant prepared and filed a chamber summons dated 23 February 2012 seeking an extension of time for the filing of the appeal. Further, my reasons for decision in the appeal and the orders I made are clear. An application had to be filed, supported by affidavit.