Heugh v Central Petroleum Ltd [No 4]
[2013] WASC 382
HEUGH -v- CENTRAL PETROLEUM LTD [No 4] [2013] WASC 382
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 382 | |
| Case No: | CIV:1493/2012 | 17 OCTOBER 2013 | |
| Coram: | LE MIERE J | 21/10/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | The action not be listed for a trial commencing on 4 November 2013 | ||
| B | |||
| PDF Version |
| Parties: | JOHN PHILLIP HEUGH CENTRAL PETROLEUM LTD |
Catchwords: | Practice and procedure Listing of action for trial Prejudice to the defendant |
Legislation: | Rules of the Supreme Court 1971 (WA), O 1 r 4A |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CENTRAL PETROLEUM LTD
Defendant
Catchwords:
Practice and procedure - Listing of action for trial - Prejudice to the defendant
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A
Result:
The action not be listed for a trial commencing on 4 November 2013
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr R L Hooker
Solicitors:
Plaintiff : Bennett + Co
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Nil
1 LE MIERE J: The plaintiff has moved for an order that this action be listed for trial for four days commencing on 4 November 2013. Those dates were previously reserved for the trial of this action but the action has not been listed for trial. The defendant resists the action being listed for trial on those dates on the grounds that it would be prejudiced if it was required to proceed to trial on those dates.
Course of the action
2 The trial arises out of events in February and March 2012 culminating in the defendant terminating the plaintiff's employment as managing director of the defendant on 22 March 2012. Earlier this year I reserved four days commencing on 4 November 2013 for the trial of this action in anticipation that the action would then be ready, but did not then list the action for trial. At the time it was anticipated by both parties that the case would be ready for trial on those dates.
3 On 13 September 2013 the plaintiff amended his statement of claim without leave pursuant to O 21 r 3(1) of the Rules of the Supreme Court 1971 (WA). The defendant subsequently applied to disallow the amendments in part. I heard that application on 17 October and determined on 21 October that the amendments should not be disallowed but that the plaintiff should give particulars of the allegation in [48] of the statement of claim that as at 2 February 2012 or alternatively 21 February 2012, the directors of the defendant had already determined to terminate or cause to be terminated the plaintiff's employment or alternatively to take steps to diminish the role of the plaintiff as an employee and director of the defendants so as to bring to an end the employment relationship between the plaintiff and the defendant.
4 The defendant submitted that the action should not be listed for trial on 4 November 2013 because the defendant would be prejudiced if the amendments to the statement of claim were allowed to stand and the defendant was required to meet a case as amended at a trial commencing on 4 November 2013. As I have said, the amendments have been allowed to stand. Hence, the defendant says that it will be prejudiced if it is required to meet the case as amended at a trial commencing on 4 November 2013. The defendant says, in effect, that the matter will not be ready for trial on 4 November 2013 because of matters relating to the preparation of witness statements, resolving objections to witness statements, supplementary discovery, the trial bundle, claims to privilege over documents produced under subpoena by directors of the defendant and subpoenas to third parties.
Further witness statements
5 The defendant has exchanged only one witness statement - that of its chairman, Dr Askin. In addition, the defendant says that it 'presently intends … to read into evidence the affidavit of Trevor Shortt dated 16 April 2012'. The defendant says that based upon the pleadings prior to the service of the amended statement of claim, the defendant did not intend to call any further witness evidence. Since service of the amended statement of claim on the defendant, it has taken steps to obtain instructions from other members of the board of the defendant, namely Mr Faull and Mr Dunmore, to prepare for the possibility of having to call them as witnesses should any of the substantive amendments introduced by the amended statement of claim have to be met by the defendant.
6 The plaintiff has criticised the steps taken by the defendant's lawyers to obtain instructions from Mr Faull, Mr Dunmore and from Dr Askin concerning the allegations in the amended statement of claim. It appears that Mr Faull, Mr Dunmore and Dr Askin were first contacted by the defendant's solicitors concerning the allegations in the amended statement of claim on 11, 14 and 2 October respectively. The amended statement of claim was served on the defendant after 4.00 pm on 13 September 2013. Substantial work remains to be done to obtain instructions from Faull, Dunmore and Askin, to determine whether evidence, or additional evidence, should be adduced from them and to prepare and deliver witness statements from them.
Other trial preparation
7 The defendant has delivered lists of objections to the plaintiff's witness statements. The parties have not yet conferred on the extent of their objections to the statements. The defendant's solicitors have sought further supplementary discovery from the plaintiff. The plaintiff has not yet responded to that request. The solicitor with the conduct of the matter on behalf of the defendant, Ms Rivett, has sworn that she is unable to assess whether any additional documents are to be added to the trial bundle pending the outcome of the defendant's application to disallow amendments to the statement of claim and the plaintiff's response to the defendant's request for supplementary discovery.
8 On 20 March 2013, at the request of the plaintiff, the court issued subpoenas addressed to Faull, Askin and White. The subpoena addressees applied to set them aside. The application was heard on 12 August 2013 and on 28 August 2013 the court ordered that the subpoenas be set aside in part and subsequently amended. The return date of the amended subpoenas was extended, by consent, to 18 September 2013. On 13 September 2013 Faull, Askin and White delivered to the court the documents they provided in response to the subpoenas. Faull, Askin and White have claimed privilege over 66, 92 and 86 emails respectively produced under the subpoenas. The claims for privilege have not yet been resolved. The defendant has issued a subpoena to a journalist and publisher of an article about the plaintiff which appears to concern the plaintiff's earnings, or potential earnings, since his termination. The article was published on or about 3 October 2013. The return date of the subpoenas is 29 October 2013.
Readiness for trial
9 Ms Rivett does not say that the defendant will not be able to proceed to a trial commencing on 4 November but says that to try and achieve all of the steps that must be completed by the defendant to be ready to commence a trial on 4 November would put a huge amount of pressure on her, her supervising partner and others within the firm assisting her and may cause the case for the defendant in meeting the case as expanded by the amended statement of claim to be prepared with undue haste and give rise to risks that issues are missed or not covered as fairly and assiduously as is warranted in the case of this importance.
Discretion to list action for trial
10 In exercising its discretion when to list the matter for trial the court must have regard to the system of case flow management and in particular O 1 r 4A and 4B of the Rules of the Supreme Court. Order 1 r 4A provides relevantly that the practice of the court shall have as its goal the elimination of any lapse of time from the initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial. In my view, having regard to that principle, the court should not list this action for trial commencing on 4 November 2013.
11 The plaintiff does not point to any specific prejudice to him if the trial does not commence on 4 November 2013. The plaintiff says that any difficulties the defendant, or its lawyers, face in being ready for a trial on 4 November are difficulties of their own making in that they have failed to seek instructions and take statements from Askin, Faull and Dunmore as expeditiously as they should have done after being served with the amended statement of claim on 13 September.
12 The action is not presently ready for trial. I accept Ms Rivett's statement that, in effect, if the defendant is required to proceed to trial on 4 November it may not present its case as completely and effectively as it would if it is given more time to prepare the case. It may be correct that the defendant could have devoted more resources to the matter after service on it of the amended statement of claim or its lawyers might have applied themselves more diligently or expeditiously in considering the amendments to the statement of claim and the defendant's response to it. However, it must not be overlooked that this situation has come about because the plaintiff amended his statement of claim. The amended statement of claim was served by email after 4.00 pm on 13 September 2013 and the defendant says that the deemed date of service is 16 September 2013. That is seven weeks before 4 November. The defendant applied to disallow the amended statement of claim in part. It was entitled to do so. There has not been any undue delay in prosecuting or defending the action. The plaintiff has pointed to no specific prejudice if the trial cannot commence on 4 November. A trial may take place no later than February 2014 provided that the parties and their witnesses are available.
13 A further matter which adds some weight to my decision that the action not be listed for trial for four days commencing on 4 November 2013 is that I doubt that the trial can be completed in four days. The parties estimated that the trial would take four days before the plaintiff amended his statement of claim on 13 September. Counsel for the plaintiff says that the amendments are in substance a reformulation of the plaintiff's case and do not involve any new allegations of fact, other than the plea that the defendant's termination of the plaintiff's employment, and the steps preceding it, were taken for an ulterior purpose. Counsel for the plaintiff says that that submission is supported by the fact that the plaintiff does not propose to put on any further witness statements. However, the defendant may choose to put on further evidence in relation to the ulterior purpose allegation. Furthermore, the amended statement of claim increases the issues in the action. The hearing of the defendant's application to disallow the amendments to the statement of claim took almost a full day. The time was taken up mostly with arguments that are likely to be repeated and perhaps expanded on at trial. That is some indication that four days is likely to be insufficient for the trial of this action.
14 In all the circumstances it is in the interests of justice that the action not be listed for a trial commencing on 4 November 2013.
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