GRIFFITHS v Westbury Holdings Pty Ltd
[2009] FMCA 1130
•16 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIFFITHS v WESTBURY HOLDINGS PTY LTD | [2009] FMCA 1130 |
| TRADE PRACTICES – Supply of goods and services – manufacture and importation of goods – warranties as to fitness – merchantable quality – defects. PRACTICE AND PROCEDURE – Non-compliance with previous orders – obligations of solicitors where non-compliance – order for dismissal if further step not taken within limited time. |
| Fair Trading Act 1987 (WA), s.79 Federal Magistrates Court Rules 2001 (Cth), rr.13.03B(1)(a), (b) & (c) and (2)(b) Trade Practices Act 1974 (Cth), ss.74B, 74D, 75AG, 82 |
| Willis v State of Western Australia (No 2) [2009] WASCA 205 |
| Applicant: | MICHAEL GRIFFITHS |
| Respondent: | WESTBURY HOLDINGS PTY LTD TRADING AS AIR GROUP AUSTRALIA & SERVICE GROUP AUSTRALIA |
| File Number: | PEG 19 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 16 November 2009 |
| Date of Last Submission: | 16 November 2009 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Torrisi |
| Solicitors for the Applicant: | McLachlan Chilton |
| Counsel for the Respondent: | Mr D McKenna |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
That the applicant file and serve:
(i)an amended statement of claim; and
(ii)any affidavit in support of the application including any expert’s affidavit or report,
on or before 4 pm on 21 December 2009.
If the applicant fails to comply either in whole or in part with order 1, the application be dismissed.
The matter otherwise be adjourned to a further directions hearing at 11.15 am on 1 February 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 19 of 2009
| MICHAEL GRIFFITHS |
Applicant
And
| WESTBURY HOLDINGS PTY LTD TRADING AS AIR GROUP AUSTRALIA & SERVICE GROUP AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from the transcript)
Application
This is an application which was filed on 16 February 2009. The grounds for the application are set out in the application and relate to alleged breaches of the Trade Practices Act 1974 (Cth)[1] and the State Fair Trading Act 1987 (WA)[2] in relation to implied conditions as to quality and/or fitness, implied warranties in relation to the supply of services and matters associated with the manufacture or importation of unsuitable goods, the manufacture or importation of goods of unmerchantable quality and also liability for manufacturing and supply of defective goods causing loss relating to buildings, land or fixtures, plus common law actions for breach of contract and negligence in the associated jurisdiction of the Court.
[1] “TP Act”.
[2] “Fair Trading Act”.
The application seeks common law damages in the sum of $243,492.15 and damages pursuant to s.82 of the TP Act and the equivalent provision of the Fair Trading Act plus compensation under ss.74B, 74D and 75AG of the TP Act. A statement of claim was filed with the application and it is evident that, not to put too broad a brush on it, the essential facts relate to an incident on 25 February 2006 where an air-conditioner caught fire and caused the damage to the applicant’s house.
History of proceedings following filing of application
There was a first directions hearing on 16 March 2009 at which only the first respondent was legally represented and at that first directions hearing the Court was told that there may be cross-claims from the first respondent. Directions were made on that date for the matter to be adjourned to 30 March 2009 and for the parties to confer.
The second respondent subsequently filed a notice of address for service and the matter came back before the Court on 30 March 2009. On that occasion various issues concerning discovery were raised with the Court and the Court made orders that the applicant file and serve any affidavit in support of the statement of claim on or before 4 pm on 30 April 2009, and that the first and second respondents file their defence by 14 May 2009. The matter was otherwise adjourned to a directions hearing on 18 May 2009.
At the third directions hearing on 18 May 2009, after the application had been on foot for some three months and after orders for the filing of affidavits had been made, the applicant raised the fact that it was necessary to have an expert inspect the air-conditioning unit. The Court is of the view that that would have been obvious from the outset, but without opposition from the respondents, orders were made by consent allowing the applicant’s expert to inspect the air-conditioning unit by no later 29 May 2009, for the applicant then to file and serve their affidavits by 19 June 2009, and for the matter to be listed for further directions on 29 June 2009.
On 29 June 2009 the applicant’s solicitor filed an affidavit which purported to deal with the facts of the matter. It is fair to observe that that affidavit is minimalist and simply reiterates in large part, terms of the statement of claim, instructions as to damages and the content of a discussion with the expert. It gives every appearance of an affidavit filed for compliance sake and little else.
There was a fourth directions hearing on 29 June 2009 and at that time the applicant was granted leave to discontinue against the second respondent. The applicant sought leave to file an amended statement of claim and any further affidavits, including any expert’s affidavits and reports, and the Court ordered that that be done by 31 July 2009. The respondent was ordered to file any defence and counterclaim and any affidavits, including expert’s affidavits or reports, by 18 September 2009, with the applicant to reply by 9 October 2009. The matter was otherwise adjourned to a directions hearing on 16 October 2009.
On 3 August 2009 the parties filed, and the Court made, orders which generally extended the time for compliance with the orders of 29 June 2009 by between four and six weeks, and adjourned the matter to today for a fifth directions hearing. The Court notes that on 4 August 2009, the day after those orders were made, the applicant filed a new notice of address for service indicating that new solicitors had in fact been engaged, and that has been confirmed by Mr Torrisi today.
The present state of the proceedings
Thus we arrive at the position today where the position which should pertain is that an amended statement of claim and defence, and affidavits by all the parties should have been filed. However, the position which does pertain is markedly different.
Looking at the file generally it is the case that the applicant should have filed an amendment statement of claim and further affidavit evidence by 14 August 2009. Some three months on and some nine months to the day after the application was lodged, that has not been done. Mr Torrisi has endeavoured to explain that today, particularly in terms of his firm becoming engaged late in the piece, but the Court notes that that late in the piece is still three and a half months ago. The respondents have not filed their defence or any affidavit evidence, although that might be explainable by the fact that they were expecting an amended statement of claim to be filed by this point in time and Mr McKenna, indeed, has made submissions which, by reference to correspondence between the parties, would support that assumption.
Simply put, the Court orders have not been complied with and certainly the applicant is in default in respect to the filing of the amended statement of claim and its evidence. Mr Torrisi has gone some way today towards explaining that by saying that at the time that his firm took over the file, not much had been done. That of course is not a matter which is the problem of the respondent who, as a consequence of the facts that have been outlined, comes to the Court today and says that a springing order is appropriate and a costs order is appropriate in circumstances where the applicant’s default is ongoing.
The applicant says today that they will be able to file an amended statement of claim forthwith and that they will be able to file their expert’s reports within 21 days. Given the history of the matter, the Court might be entitled to take those observations with a grain of salt, but nevertheless, the Court considers that some opportunity ought to be given to the applicant to file and serve an amended statement of claim and the relevant affidavits. In doing that, the Court does not ignore what the Supreme Court of Western Australia, Court of Appeal has recently said in Willis v State of Western Australia (No 2)[3] where Buss JA talked about a solicitor’s obligations in these circumstances in the following terms:
Apologies are a poor and unacceptable substitute for performance. If a solicitor becomes aware that he or she will be unable for any reason to comply with an order of the court, his or her duty is to inform the court and the other party or parties immediately of this inability and/or apply for new or varied orders by consent or otherwise. It is unprofessional to ignore or otherwise fail to comply with the orders of the court and leave it to the court or the other party or parties to take remedial or enforcement action.
[3] [2009] WASCA 205 at para.12 per Buss JA.
What ought the Court now do?
The Court notes that prior to today there has been no communication, certainly with the Court, with respect to the non-compliance by the applicant with the orders that have previously have been made. The question arises as to what the Court ought to do. The Court can order that a proceeding be dismissed or that judgment be given in such circumstances and the Court refers to rr.13.03B(1)(a) and (2)(b) of the Federal Magistrates Court Rules 2001 (Cth).[4] That is not, it appears, a matter which is pressed by the respondent who say that they seek a springing order. That is probably appropriate given that for the applicant to see his complaint dismissed in these circumstances would be the ultimate prejudice for the applicant. The Court notes in that regard, that there has been a change of solicitors and that according to Mr Torrisi not much was done before his firm got involved. The Court also notes Mr Torrisi’s assurances that things are back on track and now will be done.
[4] “FMC Rules”.
Orders and costs
The Court therefore thinks that it is probably more appropriate in the circumstances that the Court order that a step in the proceeding be taken within a limited time pursuant to an order of the Court. In this respect the Court refers to r.13.03B(1)(b) of the FMC Rules. If that step is not taken then the proceeding be dismissed as to the whole of it or any part of it, pursuant to r.13.03B(1)(c) of the FMC Rules. In the circumstances of this case, that rule-based springing order is, in the Court’s view, the proper course to adopt.
The Court will grant a little more time than Mr Torrisi has sought, in the circumstances of the matter, given the time of year and also given the history of the matter.
There will therefore be orders in the following terms:
(1)That the applicant file and serve:
ii)an amended statement of claim; and
iii)any affidavit in support of the application including any expert’s affidavit or report,
on or before 4 pm on 21 December 2009.
(2)If the applicant fails to comply either in whole or in part with order 1, the application be dismissed.
In relation to the application for costs, the Court considers that in the circumstances, given the default of the applicant over an extended period of time, it is appropriate that the applicant pay the respondent’s costs of today to be agreed, or in the absence of agreement to be assessed by a Registrar of this Court in accordance with Schedule 1 to this Court’s Rules.
The matter will otherwise be adjourned to a further directions hearing at 11.15 am on 1 February 2010.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 20 November 2009
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