Hall v Hall [No 2]
[2011] WASC 110
•29 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HALL -v- HALL [No 2] [2011] WASC 110
CORAM: SIMMONDS J
HEARD: 8 & 9 MARCH 2011 & ON THE PAPERS
DELIVERED : 9 MARCH 2011
PUBLISHED : 29 APRIL 2011
FILE NO/S: CIV 1200 of 2007
BETWEEN: POPPY DEAN HALL
Plaintiff
AND
ROBYN ANNE HALL
Defendant
Catchwords:
Practice and procedure - Case management - Inactive Cases List - Whether there is such a list - Whether the case was put on the List - Whether the application for order to remove the case from the List was properly made where other orders were applied for including order to substitute executor of plaintiff's will for plaintiff - Proper principles for exercising the discretion to remove a case from the List - Whether an order should be made to remove the case from the List
Practice and procedure - Conferral - Whether proper memorandum of conferral filed with application where both conferral and waiver of conferral claimed - Whether there had been conferral - Whether the requirement for filing a memorandum of conferral should be waived
Practice and procedure - Review of order before extraction where review promptly sought before delivery of reasons and extraction of orders on a matter on which submissions at the hearing could not reasonably have been expected
Legislation:
Interpretation Act 1984 (WA), s 5
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 2 r 1, O 2 r 2, O 3 r 5, O 4A r 21, O 4A r 22, O 4A r 23, O 4A r 24, O 4A r 25, O 4A r 26, O 4A r 27, O 4A r 28, O 18 r 7, O 29 r 2, O 29A (repealed) r 19, O 29A (repealed) r 20, O 29A, (repealed) r 21, O 37 r 6, O 59 r 9
Result:
Order to substitute applicant for plaintiff granted
Order to remove case from the List refused
Category: A
Representation:
Counsel:
Plaintiff: Mr G T Stubbs
Defendant: Mr M A R Blundell
Solicitors:
Plaintiff: Dwyer Durack
Defendant: Solomon Brothers
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Archer v Channel Seven Perth Pty Ltd [2001] WASC 195
Hall v Hall [2007] WASC 198
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Lashansky v Legal Practice Board [2011] WASCA 42
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Lashansky v Legal Practice Board [No 2] [2010] WASC 159 (S)
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Love v Griffiths [2008] WASC 168
Prout v La Rosa [2007] WASC 63
Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338
Silvester v Sands [2004] WASC 266
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
The Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37
The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Timcal Pty Ltd v Sons Of Gwalia Ltd (Subject To Deed Of Company Arrangement) [No 2] [2011] WASC 58
Table of Contents
Introduction
Was the case on the List?
Was the present application properly brought?
What is the correct approach to making an order for removal from the List?
What is the application of that approach to the applicant's case for removal?
What would be the effect of not removing the case from the List?
Was there conferral or should the necessity for it be waived?
What orders should be made as to costs?
Conclusions and orders
SIMMONDS J:
Introduction
This was an application (the present application) principally to take a case off the Inactive Cases List (the List). The case principally concerns the plaintiff's claim the defendant holds her interest in certain real property for the plaintiff, or alternatively that the joint tenancy between the plaintiff and the defendant in that property had been severed. The plaintiff died after the commencement of the case, but some time before it was put on the List. One of her two daughters, Christine Margaret Clifton‑Jones (Christine, or the applicant), is the executor of her will, which has been admitted to probate. The present application was one brought by the plaintiff, but in my view must be regarded as one brought by Christine in her capacity as personal representative of the plaintiff, against the defendant as respondent. It included an application to substitute Christine, in her capacity as executor, for the plaintiff. The remainder of the present application sought orders of a programming kind if the application to take the case off the List is granted.
The present application first came before me on 8 March 2011, when for reasons I delivered extemporaneously then I adjourned the hearing to 9 March 2011. At the latter hearing and after extensive submissions I said I would make an order of substitution but otherwise would dismiss the application, indicating I would subsequently publish my reasons. These are those reasons. I also reserved the question of costs pending the delivery of these reasons.
Subsequently to the hearing on 9 March 2011, counsel for the respondent drew my attention to a decision of the court delivered on 9 March with respect to which he sought the opportunity to make submissions prior to the extraction of my orders. That decision was Timcal Pty Ltd v Sons Of Gwalia Ltd (Subject To Deed Of Company Arrangement) [No 2] [2011] WASC 58 (Le Miere J). I granted the opportunity sought to both parties. These reasons take account of that decision and the submissions on it that I received.
The extensive submissions at the two hearings before me canvassed the issues of whether or not the case was indeed on the List; if it was, whether or not the present application was properly brought; and, if it was, the proper approach to the exercise of my discretion to taking a case off the List and whether or not I should take the case off the List. As well, those submissions canvassed whether or not there had been conferral in relation to the present application, and, if not, whether I should waive that requirement. There were also supplementary written submissions filed for the respondent, although none for the applicant, taking advantage of the opportunity in that regard that after the hearing I allowed the parties.
I begin these reasons by considering the first two issues, which are in the nature of preliminary ones. I then turn to whether or not I should make the removal order sought, to the effects of my not doing so in the circumstances of this case and to the conferral issues. The last section is my conclusions and orders.
Was the case on the List?
I provide the following overview of the List and its background in order that the parties' submissions may be understood.
Provisions for the List first came into force on 1 March 2007 as former O 29A pt 4. Effective as of 29 July 2010 the provisions became O 4A div 5. As I will explain there appear to have been only a few changes in the provisions, and only one that is potentially significant for my purposes. That change was in relation to the exercise of the discretion to remove a case from the List, and I return to it in that context below. The present application concerns O 4A div 5.
The List is a list of inactive cases kept by the Registrar under O 4A r 25: O 4A r 21. Order 4A r 25(1)(a) provides that in three sets of circumstances the Principal Registrar 'must put the case on the Inactive Cases List'. Further, O 4A r 25(1)(b) provides that the Principal Registrar 'must … give parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 26'. The latter rule provides that if a case is on the List no document in relation to the case other than a summons to take it off the List can be filed. I note that, on the authority of Timcal [16], the reference to O 4A r 26 is a printing or drafting error, as the corresponding notice requirement in former O 29A pt 4, O 29A r 19(1)(b), referred, not to the corresponding rule with respect to applications in relation to the case, former O 29A r 20(1), but to the rule concerning the consequences of the case having been on the List for six continuous months, former O 29A r 21. This corresponds to O 4A r 28, below.
There is a further notice requirement, which applies to the practitioner for a party to the case where that practitioner has been notified under r 25(1). The practitioner 'as soon as practicable' after being so notified must notify the party of the fact that the case is on the List and why, and of the effect of r 26: O 4A r 25(2). On Timcal this reference to O 4A r 26 is also a printing or drafting error: see [16]. That is because the corresponding notification requirement in former O 29A pt 4, O 29A r 19(2) was also to former O 29A r 21.
The three sets of circumstances which under O 4A r 25(1) give rise to the obligation of the Principal Registrar to put a case on the List are the following. Two involve orders or directions of the court; one concerns inaction by the parties. See Lashansky v Legal Practice Board [No 2] [2010] WASC 159 [71] (Beech J) (Lashansky [No 2] (WASC)), on former O 29A pt 4.
Firstly, a case manager may order the matter be put on the List at a hearing on the case manager's summons to show cause why the case should not be put there. The case manager may so order 'if not satisfied that the case is being conducted in at timely way, having regard to the requirements of these rules and the circumstances of the case': O 4A r 22(4).
Secondly, a judge, master or registrar may make an interlocutory order or case management direction which includes an order that 'unless the interlocutory order or direction is complied with by a date stated in the order, the case is to be put on the Inactive Cases List': O 4A r 23(1). Unless the order is countermanded by a judge, master or registrar before it has effect, the order has effect according to its terms: O 4A r 23(2).
Thirdly, O 4A r 24 may be satisfied: that rule provides as follows:
If no procedural step is taken in a case for 12 months by any party to the case, the case is taken to be inactive unless the case manager for the case orders otherwise.
It was common ground that if the case was on the List it was put there following the case being taken to have become 'inactive' under O 4A r 24. Further, it is not in contest that in that event the case was put on the List on 10 September 2010. As will be seen there is a sharp contest as to whether or not the case was indeed put on the List.
The significance of a case being or having been on the List is three‑fold.
Firstly, if a case is on the List, no document in relation to the case other than a summons for an order to remove the case from the List can be filed, as has been seen: O 4A r 26. I reproduce the terms of that rule in the next section of these reasons, because of its importance to whether or not the present application was properly brought.
Secondly, a case that is on the List for '6 continuous months' is 'taken to have been dismissed for want of prosecution': O 4A r 28(1).
Thirdly, if 'no procedural step (except an application to dismiss the case for want of prosecution)' is taken in the '6 months' after the case is ordered to be taken off the List, the case is 'taken to have been dismissed for want of prosecution': O 4A r 28(2).
I note in passing that if the case is taken to have been dismissed in either of the second and third situations the Principal Registrar must give all parties 'written notice of the fact': O 4A r 28(3).
I also note in passing that former O 29A pt 4 had a provision corresponding to O 4A r 28(1) and r 28(3), former O 29A r 21(1) and (2), respectively. However, there was no provision corresponding to O 4A r 28(2).
There were only five decisions of this court that had considered provisions of the rules concerning the List which were referred to at the hearings before me, and all of them were on former O 29A pt 4. The five in date order were Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 (Sanderson M); Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86 (Sanderson M); Love v Griffiths [2008] WASC 168 (Sanderson M); The Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37 (Sanderson M); and Lashansky [No 2] (WASC), the grounds for appeal from which were held to have no reasonable prospect of succeeding in Lashansky v Legal Practice Board [2011] WASCA 42.
However, since delivering my decision at the hearing on 9 March 2011, I became aware of a further decision of the court, Timcal, which was delivered that same day. It is a decision on O 4A div 5. Two days after the hearing, and prior to the extraction of orders, counsel for the respondent sought an opportunity to make submissions in writing on the case. I understood this as a prompt application for review of my decision made before the delivery of my reasons and before the extraction of orders, where such review was to be restricted to a matter on which I could not reasonably have expected to have received earlier submissions from the parties. I considered that on that understanding I was able to grant the opportunity sought: see Kendall C & Curthoys J, Civil Procedure in Western Australia (15 March 2011) [43.3.2]. I gave each party until 22 March 2011 to make written submissions on Timcal. In the event, I received written submissions from the respondent dated 22 March 2011; however, I received no submissions from the applicant.
From Lifelong Investments [12] I note the following on the background to and purpose of former O 29 pt 4:
Part 4 of O 29A represents a significant departure from the traditional approach to litigation taken by this court. Prior to the introduction of these rules, cases could, and often did, languish for years with no steps in the action being taken by any party. Eventually, a defendant, tired of having an action hanging over his head for years, might bring an application to dismiss an action for want of prosecution. A significant body of law has grown up providing a guide as to the disposition of such applications. But it is fair to say, I think, that courts have generally been sympathetic to a tardy litigant and have been reluctant to grant a strike out application, particularly if it is a first application. But pt 4 brings a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable dispatch, with significant and self-executing consequences for a tardy litigant.
With that overview and background I turn to the submission for the applicant that the case was not in fact on the List, or at least was not properly on it. This is notwithstanding the present application having been made on the contrary assumption. It is common ground that it was only after the present application was lodged that the parties discovered the only indication on the records of the court that the case might be on the List was the entry 'Inactive', with 'Status Date' showing '10 Sep 2010' in the court's electronic records. That entry is in the Integrated Courts Management System (ICMS), for 'Current Matter Status'. It was not in contest that that entry was made by the programming of the ICMS itself, rather than an entry made in the ICMS by a user. Further, it was not in contest that the Principal Registrar did not send to any of the solicitors of record for the parties a written notice as required by O 4A r 25(1)(b). The submission for the applicant was that there was no or no sufficient evidence there was in fact a List as provided for by O 4A r 21; and there was in any event no or no sufficient evidence the Principal Registrar had put the case in the List, and indeed evidence to the contrary, in the failure of the Principal Registrar to give the notice required by O 4A r 25(1)(b). That failure was to give any such notice at all, rather than one that might (for example) have not made the correct reference to O 4A r 28, as Timcal indicates O 4A r 25(1) (b) should be read.
I deal with those parts to the submission in that order. It will be seen I do not accept any of them.
I consider that ICMS entries 'Inactive' for 'Current Matter Status' are evidence that there was a List as provided for by O 4A r 21, and that those entries make up the List, for the following reasons.
In my view there is no reason to consider a list provided for in the rules must be maintained in any particular form. The applicant did not suggest any such reason, other than the use of the word 'list' in the rule. That word is not defined in O 4A or elsewhere in the rules or the legislation under which O 4A was made, the Supreme Court Act 1935 (WA). In its ordinary meaning (see Macquarie Dictionary, 'list'), 'list' seems to me to be capable of including any record of case names systematically assembled. This construction in my view is consistent with Interpretation Act 1984 (WA) s 5 'document'. See also Prout v La Rosa [2007] WASC 63 [18] (Blaxell J) (on 'document').
The only evidence before me that the ICMS entries for 'Current Matter Status' are the List within the meaning I have described was in the affidavit filed in opposition to the present application of Tracy Hong Hong affirmed 9 March 2011. She deposes she is solicitor in the employ of the solicitors for the defendant, and she annexes an e-mail from my associate and its attachment, described in the e‑mail under the caption for the case as a 'screen dump showing the 'inactive status' on the court's ICMS database in the above matter' which showed 'inactive' and 'status date' as '10 Sep 2010'. I consider that the e‑mail and its attachment are sufficient to show that the ICMS entry there shown is part of a systematically assembled record which is capable of being a 'list' for the purposes of O 4A r 21.
Of course, there is a distinction between a case being ('taken to be') 'inactive' (O 4A r 24), and such a case being 'put … on the Inactive Cases List' (O 4A r 25(1)(a)). However, it is not evident to me that the ICMS entries are simply to record the date on which the condition in O 4A r 24 was met. Indeed in this case there is evidence to the contrary. As I will indicate when I consider the chronology of events in this case, there had been no procedural step of any kind, let alone one taken by a party, in this case for almost 20 months before the date shown in the ICMS database of 10 September 2010.
However, as counsel for the applicant reminded me, the 'list', to be that under O 4A r 21, must be one 'kept' by the Principal Registrar 'under' O 4A r 25. I understood this to be a contention that the 'list' had to be one maintained by the Principal Registrar of cases for which the Principal Registrar had at the least taken the action required by O 4A r 25(1)(a). I return shortly to the question whether or not the Principal Registrar had also to have taken the action required by O 4A r 25(1)(b) for the case to have been put on the List. For present purposes, I accept the contention restricted to O 4A r 25(1)(a).
I took counsel to be making the further contention that there was no evidence the Principal Registrar was keeping the List as described. However, I concluded I should not accept this further contention. I so concluded for a combination of five reasons. First, I concluded that the ICMS entry in evidence from the Hong affidavit was capable of being a part of a 'list' within O 4A r 21. Second, there is no indication in O 4A div 5 that the 'list' that is 'kept' by the Principal Registrar, in the sense it is maintained by that officer as a record of cases he has put on the 'list', must bear on its face the certification that it is a record so maintained of such cases. Third, I consider from the Hong affidavit that it has been proven the ICMS is a record of the court. Fourth, I consider I may take judicial notice of the fact that the Principal Registrar is an officer of the court. Fifth, I consider that the Principal Registrar could perform the duty or function of keeping the List through an authorised agent such as through those who programmed and maintained the ICMS. See the authorities referred to in Lashansky [No 2] (WASC) [64]. Those five elements are sufficient in my view to engage the presumption omnia praesumuntur rite esse acta: on that presumption, see Heydon JD, Cross on Evidence (8th Aust ed, 2010) [1175]. In my view that presumption here would mean that the Principal Registrar had duly authorised those who programmed and maintained the ICMS on the Principal Registrar's behalf in accordance with the Principal Registrar's instructions to programme ICMS to put cases on the List and maintain it, they had done that programming within the terms of their authority and that programming had operated to put the case on the List, which was being maintained in accordance with that programming.
It follows from my conclusion that I consider there was indeed evidence that the Principal Registrar had put the present case on the List. That evidence was in the Hong affidavit. That evidence would be sufficient, at least if there were no evidence to the contrary sufficient to justify a finding to the contrary. Counsel for the applicant contended there was such evidence, in the failure of the Principal Registrar to give the written notice required by O 4A r 25(1)(b). I disagree, for the following reasons.
It is clear from O 4A r 25(1) that the giving of the notice required by r 25(1)(b) is a matter separate from the Principal Registrar putting a case on the List as required by r 25(1)(a), and that matter is to come after the Principal Registrar has put the case on the List. It would of course at the least be regrettable if, a case having been put on the List, no notice were sent as O 4A r 25(1)(b) requires. Certain consequences may flow from that failure as I will indicate. However, in view of the treatment in O 4A r 25(1) of the matter of the Principal Registrar giving the notice required by O 4A r 25(1) I do not consider an inference should be drawn from the failure to give that notice that the Principal Registrar had failed to put the case on the List or if one were drawn that such inference when weighed with the evidence of the ICMS entry should lead me to the conclusion the case was not put on the List.
I consider some but limited or very limited support for that view can be drawn from Lashansky [No 2] (WASC) and Timcal.
In Lashansky [No 2] (WASC) a notice otherwise in accordance with former O 29A r 19(1) was issued stated to be from the Principal Registrar but signed by Beech J's former associate purportedly on the Principal Registrar's behalf. Beech J indicated he was not persuaded he would draw the inference from that signature so appearing that the case in Lashansky [No 2] (WASC) had been put on the List by the associate, not the Principal Registrar: [63]. However, it seems to me this is only very limited support for my view, as there is a significant difference between no notice at all, and one bearing a signature purportedly on behalf of the Principal Registrar.
I note that in Timcal one of the issues was whether or not the failure by the Principal Registrar following the satisfaction of O 4A r 24 to give the notice required under O 4A r 25(1)(b) had the effect of preventing the operation of O 4A r 28, including r 28(1). That sub-rule as has been seen provides for the case to be taken to have been dismissed for want of prosecution if it has been on the List for 6 continuous months. His Honour found that the failure did prevent that operation, that is, it was a pre-condition to the operation of O 4A r 28 that the notice required by O 4A r 25(1)(b) had been given. See [15] ‑ [27].
However, the issue of whether or not the case had been put on the List had also been raised. Le Miere J held, after referring to the effect of O 4A r 24 and the fact that there was no order otherwise, that the case had been put on the List on 19 February 2010: see [13] ‑ [14]. He did not further indicate why he held the case had been put on the List then.
My view, arrived at without the assistance of submissions from counsel, is that that Le Miere J's holding so far as it went supports the view I have expressed here. However, that support is very limited, as his Honour did not provide any further indication than he did as to why he held his case had been put on the List under O 4A r 25(1). Further, so far as I can tell from his reasons, the parties did not address to him any contention that the inference pressed on me should have been drawn in his case.
I should add that counsel for the respondent put emphasis on Riviera Apartments as supporting the proposition that the failure to give the notice required by what is now O 4A r 25(1)(b) did not affect the validity of the entry of the case on the List. In that case it appears to have been common ground that the case had been put on the List, and that the period of 6 continuous months referred to in what is now O 4A r 28(1) had expired, with the effect that the case should be taken to have been dismissed for want of prosecution. Sanderson M rejected the contention that that dismissal should be set aside under O 2 r 1(2) for that failure. However, there was no contention in that case that on the evidence of the failure or otherwise the finding should be made the case had not been put on the List. On that basis I consider that case offers no support for my view.
I note that it was common ground the firms of solicitors involved in the hearings before me had made inquiries of the court at different times as to whether or not the case was on the List, and they had received different responses. Those firms were Dwyer Durack and Solomon Brothers. Solomon Brothers have throughout been the solicitors of record for the defendant. In November 2009 Dwyer Durack were instructed by Christine to act for her and on 16 March and 16 July 2010 the solicitors for the defendant communicated with Dwyer Durack putting a proposal for settlement of the case to them. At the time of the later communication it appears that Dwyer Durack no longer had instructions to act for Christine. By 3 November 2010 it appears the firm was once again acting for Christine. On 23 February 2011 a notice of change of solicitors was filed stating that the plaintiff had appointed Dwyer Durack in place of Friedman Lurie Singh & D'Angelo. In fact, that firm had been the solicitors of record for the plaintiff from the commencement of the case until the filing of a notice of change of solicitors on 26 November 2008. That notice showed Maxim Litigation Consultants as the solicitors of record for the plaintiff.
It was further common ground that on 3 November 2010, Dwyer Durack had telephoned the Supreme Court Registry to enquire whether these proceedings had been placed on the List. They were informed the proceedings had been placed on the List on 10 September 2010. The inquiries followed receipt by those solicitors of a letter from Landgate concerning the plaintiff's application to give effect to an order of the court pursuant to a judgment in favour of the plaintiff in default of appearance by the defendant. Subsequent to the application that order was set aside when that judgment was set aside (see Hall v Hall [2007] WASC 198 (Newnes J, 31 August 2007)), and the letter from Landgate had indicated that the plaintiff's application would in its turn be set aside in certain circumstances. It is not clear from the letter or from any other evidence before me what prompted the inquiries of the court. However, I should note that until 23 February 2011 as I have indicated Dwyer Durack were not solicitors for the plaintiff of record and so would have had no reason before then to expect to have received any notice from the Principal Registrar under O 4A r 25(1)(b).
On 3 December 2010 the solicitors for the defendant had telephoned the Supreme Court Registry and were told that, although the proceedings were noted as inactive on the court computer system, they were not on the Inactive Cases List. This inquiry had followed a letter dated 22 November 2010, one of two of that date from Dwyer Durack to the solicitors for the defendant, stating that the case was on the List and that they had instructions to apply to take it off the List, and asking whether the application would be opposed. The solicitors for the defendant were on the record throughout these proceedings, and so I would infer they knew or ought to have known at all material times they had not received the notice provided for in O 4A r 25(1)(b).
However, I do not draw from the different responses the two firms of solicitors received enough for me to conclude, in the face of the evidence of the ICMS entry I have referred to, that the case had not been put on the List. I do so for two reasons. The responses were inconsistent. And it was not apparent from the evidence I have referred to from whom in the Registry the different responses came.
I note that in Timcal there was evidence before Le Miere J that on or about 15 September 2010 a solicitor from the firm acting for the person submitting the case was not on the List had been informed by 'Sam' in the court that the case was not and never had been on the List [11]. However, his Honour also had evidence that earlier solicitors for the other party had written to that firm saying that 'from their enquiries of the court, the court had placed the action on the Inactive Cases List on 17 March 2010' [10] (emphasis supplied). It will be recalled that Le Miere J found the case had been put on the List on 17 February 2010. However, it is not apparent from Timcal what if anything was made of this evidence in argument, and Le Miere J did not return to it. I do not consider I can draw anything of assistance to me from this evidence in Timcal.
I did not understand counsel for the applicant to have submitted that the failure to give the notice under O 4A r 25(1)(b) was an irregularity such that, notwithstanding O 2 r 1(1), putting the case on the List was a nullity: see for an irregularity capable of an effect of that kind Hoskins v Van Den-Braak (1998) 43 NSWLR 290, cited in Timcal [29]. As no argument for either party was addressed to me on this point, I do not consider it is appropriate I further address it.
Nor did I understand counsel for the applicant put to me that in any event that failure was an irregularity such that, on an application under O 2 r 1(2), the court would be warranted in setting aside that step in the present proceedings. However, counsel for the respondent put to me as I understood him that any submission of the latter kind would have to fail, because of O 2 r 2(1). The contention was that the applicant would not be able to show that, as required by that provision, any such application would be within a reasonable time, and that it had been taken before the applicant had taken a fresh step in the proceedings, being the present application. I consider there is much to be said for the first part of the contention; however, at first blush the latter would founder on the requirement in O 2 r 2(1) that the applicant had taken that step aware of the failure to give the notice. This was given that it was not until 23 February 2011 her solicitors had become solicitors of record. However, I do not have to go further into the matter, as the applicant did not in my view make the submission she could rely on O 2 r 1(2) to have the entry on the List set aside.
It follows from all of my previous conclusions that the applicant has not made good her submission that the case was not put on the List.
I turn now to the submission for the respondent that the present application was not properly brought.
Was the present application properly brought?
The submission for the respondent rested on O 4A r 26 and the orders sought by the present application other than the order for removal of the case from the List.
I have paraphrased O 4A r 26 previously. However, I should now set it out in full text:
If a case is on the Inactive Cases List, no document in relation to the case, other than a summons for an order under rule 27(1), can be filed in the Court.
The reference to 'an order under rule 27(1)' is to 'an order that the case be taken off the Inactive Cases List'. The present application, as has been seen, also seeks other orders. One is an order under O 18 r 7(2), to make Christine, as executor of the will of the plaintiff, in the words of that sub-rule, 'a party to the cause or matter and the proceedings to be carried on as if [she] had been substituted for [the plaintiff]'. The others are programming orders. The submission for the respondent is that O 4A r 26 does not allow for an application for a case to be taken off the Inactive Cases List to include a request for any other order than for such a removal. I disagree, for the following reasons.
First, it seems to me that on a close literal reading of the rule it allows for any order to be joined in a summons under O 4A r 27(1). Such orders may most obviously in my view include programming orders directed to moving the case once removed from the List to a final hearing. True it is that none of the authorities on former O 29A pt 4 and present O 4A Div 5 which concerned whether or not to grant an application to take a case off the List - Swick, Love and Lashansky [No 2] (WASC) - involved an application seeking any other orders than to take the relevant case off the List or (in the case of Lashansky [No 2] (WASC)) an application seeking orders to have any putting of the matter on the List set aside for irregularity. However, at least one - Swick [9], [11] - contemplated the making of programming orders on the application, 'perhaps backed up by a springing order' ([11]), a view of the possible orders that was endorsed in Lashansky [No 2] (WASC) [69]. In my view, while the purpose of such orders might be accomplished by conditions on a removal order (see O 4A r 27(3)), what was contemplated was not or not necessarily such conditions. Also, as will become apparent, an important consideration in evaluating an application to take a case off the List is whether there is 'evidence of commitment to progress the action by an identified programme of steps, with a timetable, to bring the matter to a hearing': Lashansky [No 2] (WASC) [83]. It was accepted by counsel for the respondent that such evidence should be provided by the supporting affidavit setting out such a programme. On these considerations I cannot see why such evidence might not be further supported by setting out as orders applied for those to which the deponent has deposed to a commitment.
Second, it seems to me that acceptance of the submission for the respondent would be to render O 4A r 27(1) nugatory in circumstances like those of this case. It is not evident to me how an application under that provision could be brought where the party who would otherwise have been interested in bringing it dies not long after the case is put on the Inactive List. I grant that in this case the death of the plaintiff did not so occur, occurring on 12 May 2008. There was thus a substantial period after the death before the case was put on the List, as I have held it was, being almost two years and four months before 10 September 2010. However, while in my view that period, within which the person seeking the substitution order could be expected to obtain probate and then apply for an order for substitution before the case is put on the List, is as I will indicate relevant to the making of a removal order, that period is not preclusive of an application for such an order being made.
In my view this last consideration also deals with the contention for the respondent that the applicant lacked standing to bring the present application. It seems to me the personal representative of a deceased party must be regarded as having standing to bring an application like the present one, at least if it includes an application for an order to add that person as a party under O 18 r 7.
For these reasons I consider the application for the present orders, which included an order under O 4A r 27(1), was properly brought.
Further, it seems to me, on the same considerations I have rehearsed in this section of my reasons, that an order under O 18 r 7 could be granted on such an application, even where the order under O 4A r 27(1) was not made. In my view in this case I should make an order of the former type, even although I concluded I should otherwise dismiss the application. My reason for doing so was that, notwithstanding that the six month period referred to in O 4A r 28(1) was about to expire, such an order would be of assistance in any future proceeding, such as to set aside any dismissal of the case for want of prosecution under that sub‑rule. Further, it is not clear the matter has been so dismissed. I return to the matter of such dismissal in this case below. Also, it was not suggested to me there was a reason not to make an order under O 18 r 7 if I concluded O 4A r 26 was not a barrier to making it.
I should also note that Timcal is not relevant to the present issue, or indeed the next two. That is because the applicant in that case had not made any application under O 4A r 27(1).
What is the correct approach to making an order for removal from the List?
I first consider the correct approach to the making of an order to take a case off the List.
It was not in contest that the determination whether to make such an order is a discretionary one and the discretion was one to be exercised in accordance with the proper principles. What are those principles?
It seems to me that for my purposes those principles are for the most part as stated in Lashansky [No 2] (WASC) [68] ‑ [69], [74] and [80] in relation to the predecessor to O 4A r 27(1), former O 29A r 20(2). There was no contest as to that statement, which is
The first defendant's submissions identified the following statements of principle from decisions of Master Sanderson on pt 4 of O 29A:
(a)courts have generally been sympathetic in the past to a tardy litigant and have been reluctant to grant a strikeout application, but the Inactive Cases List provisions bring a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable despatch, with reasonable significant and self‑executing consequences for a tardy litigant: Lifelong Investments … [12]; and
(b)an application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order: Swick … [11].
I would respectfully adopt these statements.
…
In exercising power under O 29A r 20(2) it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial.
I also note the following from Lashansky [No 2] (WASC). There the case had been put on the List on 24 December 2009. The applicant had sought to explain the lack of any procedural step taken in 2008 and 2009 by reference to proceedings in another matter, his appeal in which was determined against him in February 2010. In Lashansky [No 2] (WASC) [80] the following appears:
There is no evidence or submissions to explain why the plaintiff has taken no steps in this action from February 2010 when the appeal was dismissed, until 18 June 2010 when he filed this application to have the case removed from the list. An application to remove the case from the Inactive Cases List is an essential step before the action can be progressed. To my mind, the plaintiff's unexplained failure to apply to have the case removed until four months later weighs in a significant way against the favourable exercise of the discretion to order removal of the case from the List.
This paragraph ascribes significance to an unexplained failure to apply to make an application under a provision like O 4A r 27(1) for the period indicated. In my respectful view that significance is appropriate as the matter goes to the most recent procedural activity by the applicant as well as one which is essential before the case can be progressed.
Two further matters may be noted in respect of these statements of principle. One concerns the change in the provision in the rules for applications for an order to take a case off the List after the decision in Lashansky [No 2] (WASC). The other was raised but not resolved by Beech J in that decision. Counsel for the respondent appeared to submit to me that in this case the second matter at least went to increase the burden of persuasion on the applicant; counsel for the applicant appeared to put to me it did not, at least in this case. For the reasons that follow, I agree with the former submission.
The provision for taking a case off the List under former O 29A pt 4 had in one rule what is under O 4A Div 5 r 26 and r 27(1) and (3). Former O 29A r 20 read as follows:
(1)If a case is on the Inactive Cases List, no document in relation to the case, other than a summons for an order under subrule (2), can be filed in the Court.
(2)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be removed from the Inactive Cases List.
(3)An order that a case be removed from the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.
I have previously set out O 4A r 26. Order 4A r 27 reads as follows (emphasis added):
(1)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(2)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
(3)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.
It may thus be seen there was no counterpart to O 4A r 27(2) under former O 29A r 20. However, it was not suggested that O 4A r 27(2) made any change in the proper approach to the discretion to take a case off the List, at least for my purposes. In particular, it seemed to be common ground that O 4A r 27(2) stated in the rule what could be drawn from Lashansky [No 2] (WASC) read with former O 29A r 20(2) and (3). The reference to 'any other good reason', as I understood the parties' positions, was simply what might be taken from the discretionary character of the decision the court was called on to make, including its power to include any conditions 'necessary to ensure the case is conducted in a timely way' (O 4A r 27(3)). That power might be particularly, if not only, apposite where satisfaction as to future timely conduct of the case (O 4A r 27(2)) had not been attained. At the same time, in my view O 4A r 27(2) should be seen to reinforce the proposition that an application to take a case off the List 'should not be regarded as mechanical' (Lashansky [No 2] (WASC) [68] (b)).
The second matter was that raised in Lashansky [No 2] (WASC) [75]:
In some of the observations of Master Sanderson on pt 4 of O 29A, there is reference to the High Court decision in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154 and the notion that 'case management is not an end in itself'. See, for example, Lifelong Investments … [13] and Love … [3]. These observations may require reconsideration in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. However, it is not necessary, for the purposes of dealing with this application, to give that question further attention.
However, it seems to me that in this case I am required to provide an answer to his Honour's question, for two reasons. One is that there were submissions directed to me on the point. The other is that it appears to me the explanations given for inaction in this case were more extensive than those in Lashansky [No 2] (WASC).
It appears to me that Beech J in Lashansky [No 2] (WASC) particularly had in mind from Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 such paragraphs as [94] - [103] (Gummow, Hayne, Crennan, Kiefel & Bell JJ) and [6], [30] (French CJ). Those paragraphs indicate to me that a party seeking relief from the effects of a failure to comply with a time limit provided for in the rules will in most cases be expected to provide an explanation for that non‑compliance, to be weighed against the effects of the failure and case management considerations (see O 1 r 4A, r 4B): see Aon Risk Management [103]. In weighing any such explanation regard will be had to its adequacy. In my view, to the extent that Lifelong Investments [13] and Love [3] might be taken to suggest that case management considerations will only in 'extreme circumstances' outweigh an explanation, that suggestion cannot be accepted. See Aon Risk Management [94], disapproving the view expressed in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154.
It further seems to me that there is nothing in the language of O 4A r 27(2) to indicate that such weighing is not appropriate in most cases, including where it is sought to have the court exercise its discretion to take a case off the List 'for any other good reason' rather than because it is 'satisfied the case will be conducted in a timely way'. The case management considerations in O 1 r 4A, r 4B are of general application. The background to and nature of the List as I have explained them indicate to me that the language of O 4A r 27(2) was not meant to displace or replace those considerations, or diminish the significance of the effects of the matter that led to a case being put on the List, for the purposes of applications to take a case off the List.
What is the application of that approach to the applicant's case for removal?
The applicant's case as I understood it was that the court could be satisfied the case would be conducted in a timely fashion, or that other good reasons for taking the case off the List existed: O 4A r 27(2). The court could address any concerns it had about the future progress of the case through suitable conditions under O 4A r 27(3), which I understood to be a reference in large part at least to the possibility of making the programming orders in the present application conditions to the removal of the case from the List.
The applicant's case rested on Christine's explanation for her inability 'to progress this matter before' and indications of changes in respect of that previous inability, both as deposed to in her affidavit sworn 17 February 2011 and filed 23 February 2011 in support of the present application (see particularly [24] ‑ [25]). There was reliance also on an affidavit of June Delphine Kenny sworn 8 March 2011 and filed that day also in support of the present application (see [4]), and on an annexure to an affidavit of the defendant sworn 4 March 2011 in opposition to the present application and filed that day (see annexure 'RAH 6'). Ms Kenny deposes she is a director of Dwyers Legal Pty Ltd which trades as Dwyer Durack Lawyers, while 'RAH 6' is the letter of 22 November 2010 from Dwyer Durack regarding an application to take the case off the List.
Christine's explanation refers to six factors which her affidavit indicates should be read in conjunction with the decisions she and her professional advisers have made to focus the case on just one cause of action. I will consider that focus below.
Two of these are factors in respect of which there is no indication of any change in the factor which would enhance her ability to progress the case. One is the need for constant help and support for an adult son of hers: Christine's affidavit [24](d). The other is that she has found it 'very difficult' to read and understand the 'legal issues': [24](f). I note that, with respect to the need for such help and support, the defendant in her affidavit deposes to being told by Christine that the son travelled to Europe alone spending several weeks there during about 2007: the defendant's affidavit [9]. I consider that without more about the circumstances of this exchange I should not find that the factor of a need for constant help and support does not now operate. However, I further consider that that factor and the factor of the difficulty with understanding weigh against making an order to take the case off the List. That is because there is no indication that either factor will not continue to operate to interfere with the applicant's ability to progress the case, even if the case is focussed as I will describe.
The remaining four factors referred to in Christine's explanation are all ones in respect of which counsel for the applicant relied upon certain indications of change in Christine's affidavit and the Kenny affidavit. However, counsel for the respondent took objection to the principal parts of a number of those indications. I will consider those objections when I review those factors and those indications. Before doing this, I need to provide the following chronology of this case.
On 28 February 2007 the writ of summons with a statement of claim was filed.
On 22 March 2007 the plaintiff filed an application for an order for substituted service, and an order was made on 27 March 2007.
On 15 May 2007 the plaintiff obtained a judgment in default of appearance.
On 9 July 2007 the defendant filed a memorandum of appearance.
On 16 July 2007 the defendant filed a chamber summons for orders to set aside the default judgment, and on 31 July 2007 the defendant filed an amended chambers summons adding a request for an order to set aside the order for substituted service.
On 7 August 2007 there was a hearing on the amended chambers summons, and on 31 August 2007, following the publication of his reasons in Hall, Newnes J made orders setting aside the default judgment; requiring the defendant to file and serve a defence and any request to strike out the statement of claim within 14 days and any request for further and better particulars within 30 days; and requiring the matter be transferred to the Commercial and Managed Causes List managed by Newnes J. On that day also Newnes J issued a summons for directions under O 29 r 2(1). On 6 September 2007 he made orders following the hearing on that summons principally for the plaintiff to file and serve a reply before 25 September 2007 and the parties to submit to mediation not to be heard before 21 November 2007.
On 21 September 2007 the defendant filed a defence and counterclaim.
On 16 October 2007 the plaintiff filed a reply and defence to counterclaim.
On 4 December 2007 a mediation occurred at which, as explained in Christine's affidavit, 'the parties made a "non-binding" agreement, and agreed to finalise the details between themselves'. Immediately after the mediation the plaintiff fell very ill.
In January 2008 the Christine's marriage of 26 years came to an end.
On 12 May 2008 the plaintiff died. Christine became heavily involved in the funeral arrangements. In or around this month Christine instructed Maxim regarding the case.
In June 2008 Christine suffered stress attacks and pneumonia.
On 19 November 2008 a chamber summons for an order that Friedman Lurie Singh & D'Angelo cease to be solicitors of record for the plaintiff and Maxim file a Notice of Appointment was filed.
On 26 November 2008 a notice of change of solicitors was filed by Maxim.
On 2 December 2008 the application of 19 November 2008 was dismissed. It may be noted this is the last indication of activity on the file before the date the case was shown in ICMS as 'Inactive', as at 10 September 2010. It was not in contest that the last procedural step taken by any party before that date was the filing of the reply and defence to counterclaim by the plaintiff on 16 October 2007. The filing of a notice of change of solicitor is not a 'procedural step' within O 4A r 24: Lashansky [No 2] (WASC) [44]. I also consider that the filing of a notice of application for change of solicitor was not a procedural step, or, if it was, it was not in this case by a party.
Over the period 2 December 2007, the date of the mediation, to 22 November 2010, the date of the letter to the solicitors for the defendant from Dwyer Durack regarding an application to take the case off the List, there were three types of action the parties took. First there were attempts, principally on the defendant's side, to finalise an agreement between the parties. Second the plaintiff replaced Maxim with Dwyer Durack, a retainer which ended, after which the plaintiff retained Dwyer Durack again. Third the plaintiff obtained probate of the plaintiff's will.
On 2 February 2009 the solicitors for the defendant sent a without prejudice settlement proposal by e-mail to Maxim following a telephone conversation with a solicitor in the latter firm putting a proposal to them. The solicitors for the defendant subsequently sent e-mails to Maxim seeking a response to the 2 February 2009 proposal.
On 15 April 2009 Christine was informed by Maxim they had received a letter from the solicitors for the defendant with a proposal for settlement. Christine did not respond to that proposal.
On 3 August 2009 Christine was informed by Maxim they had received a letter from the solicitors for the defendant with another proposal of settlement. Christine's affidavit states that she did not respond to that proposal. However, the defendant's affidavit states that on 14 September 2009 Maxim sent an email to the solicitors for the defendant saying the plaintiff would consent to settlement in accordance with the 3 August 2009 proposal, and requesting a deed to review.
In the normal course it is not appropriate for a judge to attempt to resolve conflicts of evidence like this one on affidavit: see Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338 [40] (Kennedy J; Wallwork & Anderson JJ agreeing). However, where neither party has sought to cross-examine any of the deponents of the affidavits filed for the other, the defendant's affidavit is specific as to date and form of response to the 3 August 2009 proposal and there is no affidavit containing a response to the defendant's affidavit in this respect filed for the applicant, I consider that I should find on the balance of probabilities that there was a response in the terms indicated by Maxim on 14 September 2009: Robowash [40] ‑ [41].
On 18 September 2009 the solicitor for the defendants sent Maxim an email asking whether probate had been granted in respect of the plaintiff's estate, and requesting a copy if so.
In November 2009 after several months in which the plaintiff had asked barristers and solicitors in Melbourne, where it appears she was living, to whom they referred work in Perth, and being referred to Dwyer Durack, she instructed that firm to act for her. Dwyer Durack advised her to seek probate of the plaintiff's estate.
On 24 January 2010 the defendant sent an e‑mail to Christine commenting on trying to settle the case, and on 25 January 2010 Christine replied she was seeking probate of the plaintiff's will. On 9 February 2010 the solicitors for the defendant received from Dwyer Durack a letter dated 8 February 2010 saying they had been provided with some but not all of the papers relating to 'this matter', which I would understand to be probate.
On 5 March 2010 Christine was granted probate of the plaintiff's will as executor of the will.
On 15 March 2010, the solicitors for the defendant asked Dwyer Durack for a copy of the will and the grant of probate and Christine was informed by Dwyer Durack that they had received a letter from the solicitors for the defendant seeking to settle the case on the terms outlined in the 3 August 2009 proposal. Christine did not respond to this proposal.
On 16 July 2010 the solicitors for the defendant wrote to Dwyer Durack requesting that the case be settled on the basis of the previous settlement proposal, adding that if there was no response by 22 July 2010 they would take the defendant's instructions whether to proceed to apply to have the principal claim dismissed for want of prosecution, or on the basis of the consequences of the plaintiff having passed away. Dwyer Durack replied by e‑mail that day informing the solicitors for the defendant that they no longer acted for Christine and advising them to contact her directly.
On 27 July 2010 the solicitors for the defendant wrote to Christine referring to the settlement proposals and saying the defendant might have to apply to have the proceedings dismissed for want of prosecution.
Over the period 3 ‑ 18 August 2010 there was an exchange of emails between the solicitors for the defendant and Christine at the culmination of which Christine informed them she had retained Dwyer Durack to assist her in the litigation against the defendant. On 19 August 2010 a solicitor in the solicitors for the defendant telephoned a solicitor in Dwyer Durack asking if they were acting for Christine again, and that solicitor replied they did not have a retainer formalised.
By letters dated 15 August 2010 and 13 September 2010 Christine sought payment to her as executor of the plaintiff's estate from the defendant in respect of a sum for capital gains tax plus interest on shares which Christine said had been sold for the defendant from the plaintiff's holdings. By letter dated 4 October 2010 Christine stated she had handed the matter over to her lawyers.
On 10 September 2010 the case was put on the List, as I have held.
By letter dated 22 November 2010 Dwyer Durack sent to the solicitors for the defendant a Deed of Settlement in an attempt to settle the matter. By another letter of the same date to the solicitors for the defendant Dwyer Durack referred to the 'negotiations' for the settlement of the matter that 'have not been successful', stated they had instructions to apply to remove the case from the List and requested them to inform Dwyer Durack within seven days whether or not the defendant intended to oppose the application. The basis for the application is stated in terms of some of the factors on which counsel for the applicant relied before me, as well as the 'negotiations' that had been 'ongoing'. A copy of this letter is annexed to the defendant's affidavit.
On 7 December 2010 Christine's affidavit says a solicitor from Dwyer Durack spoke with a solicitor in the firm of solicitors for the defendant, who said those solicitors had no instructions to comply with 'our request' or respond to 'our offer of settlement'.
On 23 February 2011 the present application was filed, together with the notification of change of solicitors from Friedman Lurie Singh & D'Angelo to Dwyer Durack to which I previously referred.
As counsel for the applicant acknowledged, the pattern of activity on her side was patchy. It is of particular concern that Christine responded only once to settlement proposals from the defendant over a period of about 18 months: see on the relevance of such a factor Riviera Apartments [27]. At the same time, I also note the applicant's renewal of interest in settlement after the case was put on the List, which distinguishes this case from Riviera Apartments in that respect. Counsel's submissions were that a cessation of such a pattern could be expected because the following four factors had been addressed (and thus within O 4A r 27(2) the court should be 'satisfied the case will be conducted in a timely way') or at least that the address of the four factors was sufficient (and thus was 'any other good reason') and the court should make the removal order. I consider those submissions were not made good.
Counsel relied on the fact of Christine's lack of standing until probate was issued to her. However, I do not consider there was an explanation or an adequate explanation of why she did not apply for probate earlier than it appears she did. Any explanation in terms of the remaining factors I reach below in my view encounters the difficulty that she did not apply after the solicitors for the defendant had raised the matter of probate with her then solicitors in September 2009, but she was able to apply when advised to do so by her new solicitors, advice apparently given in November 2009.
Counsel also relied on Christine's health, as it was affected by pneumonia, depression and stress attacks. Counsel for the defendant objected to statements in her affidavit as to advice, apparently in connection with her pneumonia in or about June 2008, that she received from 'my doctor', that 'I should go to hospital'. I would uphold that objection, as there was in the absence of the identification of the doctor and the form of his or her advice, whether oral or written, insufficient indication of the source of the belief as required by O 37 r 6(3A): see Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989). I should add that, even had I accepted the statement as pointing to the seriousness of her condition in that respect in June 2008, it seems to me in the form in which it appears it has nothing to say as to her condition over 2009 and 2010.
Counsel for the applicant sought to rely particularly heavily on the statement in Christine's affidavit that 'my doctor has recently informed me that he believes I am now well enough to manage this litigation'. Counsel for the defendant objected to this statement on the same ground as that for the previous statements, and also on the ground this was 'bald allegations unsupported by material facts' within Lewkowski, as referred to in Civil Procedure in Western Australia [37.0.1]. I would uphold the objection on both grounds. It seems to me the statement lacks sufficient information as to the doctor in question and the form of his or her advice, whether oral or written, for the purposes of O 37 r 6(3A). It also seems to me that that form of the advice as stated is a bald allegation unsupported by the material facts relating to the basis on which the advice was given and when it was given.
In that last respect I note the delay in the making of the present application. Even allowing for the Christmas/New Year break, it does not seem to me, from the contents of the letter of 22 November 2010 regarding an application to take the case off the List and the grounds which the solicitors for the applicant were able to state there, it is evident why, if Christine had 'recently' become well enough to manage the litigation, it should have taken over two months from 7 December 2010, or over three months from 3 November 2010, the date the solicitors for the applicant were informed by the court the case was on the List, to make the present application. As I have indicated, the lack of an explanation for a delay in making an application under O 4A r 27(1) 'weighs in a significant way against the favourable exercise of the discretion to order removal of the case from the List': Lashansky [No 2] (WASC) [80].
However, counsel for the applicant also sought to rely on two further factors, which were interconnected and which were apparently intended to go to explain that delay in making the present application. Those factors were the drain on Christine from her involvement in Family Court proceedings in Melbourne and her financial difficulties in funding the case on the List due to her involvement in those proceedings. Counsel sought to rely on certain evidence in the Kenny affidavit. Ms Kenny deposes she believes, based on an email from Christine to a solicitor in Dwyer of 7 March 2011, that Christine attended the Family Court in Melbourne on 19 November 2010 and again on 15 December 2010 in which she was involved in a day‑long mediation, both occasions requiring 'extensive preparation before and after those days'. She also deposes that on 4 April 2011 there is to be a hearing in the Family Court which Christine 'believes will be the final hearing'. As I understood counsel for the respondent he pressed no objection to the first evidence, although in my view it might be vulnerable to the objection that the primary evidence of Christine, which would appear to be readily available, should be placed before the court: see Civil Procedure in Western Australia [37.6.2]. However, counsel for the respondent did object to the second evidence, on the basis it was a bald assertion without material particulars identifying the basis for her belief. In my view that objection must be upheld. Upholding it would in my view leave the financial difficulties and Family Court proceedings referred to, as an explanation for the delay in making the present application, as a source of continuing concern with respect to progress on the case if it were taken off the List.
I have concluded that the factors referred to in Christine's affidavit are not an adequate explanation of how the case came to be on the List, and was no explanation or no adequate explanation of why it should be expected that, if it were removed from the List, it would not return to the List: Lashansky [No 2] (WASC) [74].
I have noted for the purpose of arriving at that conclusion the submission for the applicant, based on Christine's affidavit, that because of the decision to focus on only one cause of action, the case would be much less complicated than originally considered. I should note that counsel for the respondent objected to the relevant passage in that affidavit, which was in the form 'Moreover, because we have decided to focus on only one cause of action, I am informed and verily believe that this matter should be much less complicated than original considered'. I consider that the objection to the second part of the sentence should be upheld, on the ground of insufficient indication of the source of the belief as required by O 37 r 6(3A). However, I do not consider the first part of the sentence, as to the decision, is vulnerable to that objection, or for vagueness in not identifying the 'we'. The effect of that focus is properly in my view a matter for submission.
It was not in contest that the focus referred to is to come about through an amendment of the statement of claim to remove the claim that the defendant holds her interest in certain real property for the plaintiff. This would leave only the claim that the joint tenancy between the plaintiff and the defendant in that property had been severed, which counsel submitted is susceptible to being tried on the effect of the documents relied upon as working a severance and on affidavit evidence. However, in my view, while this would reduce the complication of the proceedings to a significant extent so far as the plaintiff is concerned, there will potentially remain complex factual issues which are not reducible to the effect of the documents and might require at the least cross-examination on affidavits. That is because the defendant in her defence and counterclaim alleges that the plaintiff had made representations to her as to the right of survivorship, the defendant relied on these to her detriment and the plaintiff knew or intended her so to rely, with the effect it would be unconscionable for the plaintiff to sever the joint tenancy. The plaintiff's reply and defence to counterclaim takes issue with all of the elements of this pleading.
I also note that the defendant's affidavit, after referring to Christine's failure to take steps over 'a period of years, to prevent or affect my rights of possession and legal ownership of the property', refers to her expenditure of substantial sums on refurbishing the property. I consider this to be evidence of the effects of the delays in this case resulting from the applicant's conduct. True it is that if a claim to severance is made good the defendant may be entitled to an allowance for at least some of these expenditures: see Silvester v Sands [2004] WASC 266 [139] ‑ [141] (EM Heenan J). However, on the basis of the explanation in those paragraphs, this allowance would, for some of the expenditures the defendant refers to, be subject to proof they enhanced the value of the property, and might be, for other expenditures she refers to, be subject to an accounting for the rental value of the property. It does not seem to me that in that light the possibility of such allowances should be seen to remove all of the effects of the delay.
Taking account of the conclusions I have described I determined in the exercise of my discretion under O 4A r 27 that I should not order the case be taken off the List, and thus I should not make the programming orders sought. I consider that the concerns I would have if I did order removal are not ones that could suitably be addressed through conditions under O 4A r 27(3). I so consider in view of the lengthy history of delays I have referred to, the limitations in the explanations of them I have described and the effects on the defendant I have described.
What would be the effect of not removing the case from the List?
On the face of it, the effect of not taking the case off the List on the present application was that on 10 March 2011 the case should be taken to have been dismissed for want of prosecution: O 4A r 28(1). At the conclusion of the hearing on 9 March 2011 I expressed the view that was the effect in this case. There is support for that view in the conclusion arrived at by Sanderson M in Riviera Apartments that the failure to give the notice required by what is now O 4A r 25(1)(a) did not prevent the operation of what is now O 4A r 28(1).
However, Timcal is authority for the proposition that the satisfaction of the requirement that the Principal Registrar give the notice required by O 4A r 25(1)(b) is a pre-condition to the operation of O 4A r 28(1): see [20] ‑ [27]. Le Miere J held that a deemed dismissal of the case under that sub-rule was not a matter to which O 2 r 1(1) applied; alternatively if it did do so apply, then the failure to give the notice was not an irregularity that could be cured under O 2 r 1(2): see [18], [28]. He had earlier referred to Riviera Apartments, and appears to have concluded that to the extent the conclusion in that case was inconsistent with his holding that conclusion was not one he would follow. I return below to whether or not there might be a qualification to this holding in Timcal.
It has been said that an application to take a case off the List cannot be made after the expiry of the period of six continuous months referred to in the counterpart in O 29A, O 29A r 21(1), to O 4A r 28(1), O 3 r 5 being unavailable to permit an extension of the time period involved, and that it might even be that a determination to take it off the List cannot be made after that expiry on an application made before that expiry. That is because after that expiry the case ceases to be on the List. See Lifelong Investments [14].
However, whether or not those propositions are correct, Timcal is also authority for the proposition that if no notice is given by the Principal Registrar under O 4A r 25(1)(b) the expiry of the period of six continuous months referred to in O 4A r 28(1) does not prevent the making of an application under O 4A r 27(1). Indeed the making of an order on such an application is the only way in which a case may cease to be on the List. See [48]. If so, it is not apparent to me that there is any bar to a suitable further application being made to take the case off the List.
At the same time, I understood the supplementary submissions for the respondent to include that Timcal might be distinguished from this case in respect of the holdings as to O 4A r 28(1) and O 4A r 27(1), and those holdings should be qualified accordingly, on two bases. One is that in this case the party seeking to avoid the effect of the case having been put on the List had been informed by the court, if not through a notice under O 4A r 25(1)(a), that it had been put on the List in sufficient time to make an application under O 4A r 27(1): compare Timcal [10] ‑ [11]. The other was that in this case that party had in fact made such an application, which was unsuccessful: compare Timcal where no application had been made. However, I consider I do not need to arrive at a conclusion on these matters.
Was there conferral or should the necessity for it be waived?
The applicant filed with the present application a memorandum headed 'Order 59 Rule 9(2) Memorandum Supporting Waiver of Conferral' (the Memorandum). The Memorandum stated under the heading 'Reasons for not conferring' the following:
The parties have conferred, as the plaintiff's solicitors sent a letter to the defendant's solicitors about this application, but the defendant's solicitors have advised the Plaintiff's solicitors that they have no instructions to respond.
It was common ground that the letter referred to was the 22 November 2010 letter from Dwyer Durack regarding an application to take the case off the List to which I have previously referred. That letter also referred to the intention to seek programming directions which are similar to those sought in the present application. There was no reference to any order being sought to substitute Christine as executor of the plaintiff's will for the plaintiff.
It was also common ground that the advice from the defendant's solicitors referred to was given on 7 December 2010 in the conversation between a solicitor in Dwyer Durack and a solicitor in the firm of solicitors for the defendant to which I have also previously referred.
Counsel for the applicant confirmed that the Memorandum was in fact intended both as one as to conferral and as one seeking a waiver of conferral. This was for the purposes of O 59 r 9. By that rule, no order is to be made on an application in chambers unless a memorandum stating that the parties have conferred to try to resolve the matters relating to the application and the matters remain in issue: O 59 r 9(1). However, the court may waive the operation of O 59A r 9(1) in case of urgency or for other good reason: O 59 r 9(2).
Counsel for the respondent put to me that a memorandum cannot both claim conferral has taken place and in the alternative seek to have such conferral waived. I note that there is some support for that submission in Consolidated Practice Direction 4.3.2[8] and [10], with their separate stipulations for a memorandum of conferral (Form 108) and for a memorandum in a case where a waiver is sought (Form 109). However, my preliminary view is that there is no reason why the contents of both forms might not be combined in the one memorandum.
I consider I do not have to reach a final view on this matter as I consider that the Memorandum is not sufficient as a memorandum of conferral. Unlike Form 108, it does not refer to what matters remained in dispute after what was relied upon as conferral, nor indicate what the parties' positions as to programming the hearing then were. Those matters are significant, in my view, as the purpose of O 59 r 9 includes that only the matters really in dispute between the parties are referred to the court: CPD 4.3.2[3]. Further, if the parties are unable resolve the matters in dispute between them, there must be conferral with a view to agreement being reached as to programming the application for hearing: CPD 4.3.2[9]. The treatment of the complex character of the issues my reasons have had to address confirms the importance of the first matter: it was not until the hearing on 8 March 2011 that it became apparent the issues of whether there was a List, and, if there was one, whether the case had been put on it, and, if it had been put on the List, the present application was properly brought, might be ventilated. A process of conferral might have caused those issues or at least some of them to have been identified before the hearings before me. See in particular the defendant's affidavit [14], on her solicitors' inquiry of the court as to whether the case was on the List, to which I have earlier referred.
Further, even if the Memorandum were sufficient as a memorandum of conferral, the facts relied upon in my view did not show a conferral. I am of the view that, while the letter of 22 November 2010 regarding an application to take the case off the List could not represent conferral, the oral exchange of 7 December 2010 against the background of that letter might have been capable of representing conferral. See CPD 4.3.2[6] ‑ [7]. However, the response by the solicitor in the solicitors for the defendant prevented that exchange being conferral: see Archer v Channel Seven Perth Pty Ltd [2001] WASC 195 [9] (McLure J).
At the same time that response would be good reason for the court to waive the operation of O 59 r 9(1)(a): Archer [6]. However, conferral must occur shortly before the application in question: see CPD 4.3.2[6]. Here, as I have indicated there was a significant delay after 7 December 2010 before the present application was made. It seem to me the operation of O 59 r 9(1)(a) sought to be waived must be seen as the obligation to confer shortly before the application in question. In Archer where conferral was waived a letter had been sent four days before the last day for making an application to strike out a statement of claim, requiring a response within two days, failing which an application would be made: [7]. As I understood the position of the applicant the facts relied upon for the waiver of the requirement for conferral shortly prior to the making of the present application were those described in the Memorandum. Those facts were that there had been an attempt to produce a conferral about 2½ months earlier which had covered what I accept were the principal issues then identified in what became the present application. That attempt had failed because the defendant had after a period of slightly over two weeks after that attempt until the oral contact (22 November 2010 to 7 December 2010) still not given any instructions to respond, and (although this appears only by implication from the Memorandum) the applicant had not been informed of any change in that position subsequently.
However, it seems to me that in a case where there had been a period of over two months thereafter leading up to the making of the present application, and a history of patchy action for the plaintiff more generally, there is much to be said for the view that the applicant should again have sought to confer shortly before making the present application, on 23 February 2011.
At the same time I also note the defendant's affidavit in which she explains her instructions to her solicitors not to respond to the Dwyer Durack letter of 22 November 2010 regarding an application to remove a case from the List. That explanation indicates to me that she gave those instructions because, in view of the history of the case, including that Dwyer Durack were not on the record until 23 February 2011, she had no reason to believe any such application would be progressed to a hearing. This in my view represents a clear indication that it was unlikely a renewed request to respond would have produced instructions from the defendant to respond, at least while Dwyer Durack were not on the record, and perhaps not even then. I appreciate conferral is required no matter how unlikely it is it will bear fruit: see CPD 4.3.2[5]. However, here conferral had been attempted, and the attempt had produced the response described.
The matter is a close one. There was no claim that conferral should be waived because of the urgency of the present application. It seems to me that any such claim would have failed. That is because it is not evident to me there was such urgency as to preclude conferral, given the delay I have described.
However, I have concluded on balance that I should waive the requirement under O 59 r 9(1)(b).
At the same time, as I have already noted, while I would make the order for substitution sought, I would otherwise dismiss the present application.
What orders should be made as to costs?
The order as to costs that I made when I delivered my decision on 9 March 2011 was, as I have indicated, that the question of costs be reserved pending the delivery of these reasons. I note that Beech J in Lashansky [No 2] (WASC), when he made orders refusing the applications before him to take that case off the List and to grant leave to set aside the entry of that case on the List for irregularity (see [86]), also made such an order. In those reasons he indicated (see [87]) he would make orders for written submissions as to costs and for decision on the papers. His decision as to costs was Lashansky v Legal Practice Board [No 2] [2010] WASC 159 (S).
In my view I should allow the parties to indicate to me at the delivery of these reasons whether they are in a position to agree costs orders or narrow the issues as to costs. Accordingly, I will hear from the parties as to the orders as to costs I should make, including whether I should make similar orders to those in Lashansky [87].
Conclusions and orders
For the reasons I have given the orders I indicated on 9 March 2011 I would make should now be made, while I would invite submissions from the parties as to how the matter of the costs of the present application should be addressed.
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