JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JASPER -v- RILEY [2024] WADC 38
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 18 APRIL 2024
DELIVERED : 31 MAY 2024
FILE NO/S: CIV 2651 of 2022
BETWEEN: MARIAN LILIAN JASPER
Plaintiff
AND
DAVID MICHAEL RILEY
Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Where defence struck out - Plaintiff's onus under Rules of the Supreme Court 1971 (WA) O 14 - Whether there is a question to be tried - Exercise of discretion
Legislation:
Limitation Act 2005 (WA), s 4, s 59
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 14
Result:
Application allowed in part
Representation:
Counsel:
| Plaintiff | : | Mr P R MacMillan |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Peel Legal Barristers & Solicitors |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ashton v Pratt [2015] NSWCA 12
Australia and New Zealand Banking Group Ltd v Coutts [2003] FCA 968
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Cohen v Cohen (1929) 42 CLR 91
Darmanin v Cowan [2010] NSWSC 1118
Deputy Commissioner of Taxation v Howley [2021] WASC 82
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Joseph Terry Pty Ltd v T & G Fire & General Insurance Co Ltd [1973] VR 458
Netglory Pty Ltd v Caratti [2013] WASC 364
Smith v McCusker QC [2005] WASCA 226
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
PRINCIPAL REGISTRAR MCGIVERN:
Introduction
This is an application by the plaintiff for summary judgment, made pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC), and for leave to bring that application out of time.
For the reasons that follow, the application is allowed.
Relevant procedural history
The action was commenced by a writ of summons, indorsed with a statement of claim, filed on 15 March 2022. An amended statement of claim was filed on 7 November 2022 (SOC).
The defendant, who was then represented:
(a)entered an appearance on 1 April 2022; and
(b)filed a defence on 6 December 2022, which was amended on 4 April 2023.
In these reasons, except as otherwise indicated, a reference to the statement of claim is a reference to the statement of claim as amended on 7 November 2022, and a reference to the defence is a reference to the amended defence filed 4 April 2023.
On 13 April 2023, the parties attended a directions hearing at which orders were made (April Order), relevantly (at par 4 thereof) in terms that, by…
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- AGLC
- Jasper v Riley [2024] WADC 38
- Case
- [2024] WADC 38
- Decision Date
CaseChat Overview and Summary
The court found that the onus is on the plaintiff to justify any delay in making an application for summary judgment. This onus arises from the policy rationale of ensuring that such applications are brought at an early stage to avoid wasting costs. The court noted that it has a broad discretion in deciding whether to grant leave to apply out of time, taking into account the objectives of contemporary case management and any prejudice to the defendant caused by the delay. In this instance, the court was satisfied that there should be leave to bring the application out of time. This was based on the fact that until July 2023, the defendant had been actively engaged in the litigation process through his legal representatives. Since then, the defendant had not filed any documents and appeared to have disengaged from the litigation process. The court concluded that it was reasonable for the plaintiff to wait for the defendant’s discovery before deciding whether to bring the application, and that the timing of the application did not constitute unreasonable delay or prejudice the defendant.
The court proceeded to consider whether the plaintiff had discharged the onus of establishing that there was no real question to be tried. The court noted that there was no evidence from the defendant and that the plaintiff’s evidence was therefore uncontested unless it was inherently improbable or inconsistent with undisputed documents. The court outlined the well-established principles for granting summary judgment, emphasizing that it should only be granted in the clearest of cases where there is a high degree of certainty about the outcome if the case went to trial. The plaintiff bore the onus of establishing the facts necessary to make out the cause of action and that there was no defence to the claim.
In conclusion, the court found that the plaintiff had discharged the onus of proving that there was no real question to be tried. The court accepted the plaintiff's evidence and granted summary judgment in their favour. The court also noted that the delay in making the application was reasonable and did not prejudice the defendant, thereby justifying the grant of leave to apply out of time.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The onus is on the plaintiff to justify any delay, noting that the policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings to avoid wasting costs.[3][3] Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac) [38]. The court exercises a broad discretion to as to whether to grant leave to apply out of time, such discretion to be exercised taking account of the objectives contemporary case management and of any prejudice to the defendant occasioned by the delay.[4][4] Westpac [38]. I am satisfied that there should be leave to bring the application out of time (specifically, at the time it was made) because:(a)it is clear that, until July 2023, the defendant was represented and had, through his lawyers, been engaging in the litigation process including by filing a defence; (b)since July 2023, the defendant has not filed any documents in the action and appears to have disengaged from the litigation process;(c)in my view, it was reasonable for the plaintiff to await the defendant's discovery (due on 3 August 2023) before deciding whether to bring the application; and(d)in that context, making the application on 2 October 2023 did not constitute unreasonable delay on the plaintiff's part and did not result in prejudice to the defendant. Accordingly, the first issue is answered in the affirmative and the substance of the application may be dealt with. In approaching the remaining issues, I note that there is no affidavit (or other) evidence of the defendant before me. Accordingly, the plaintiff's evidence is uncontested and should be accepted unless it is inherently improbable or inconsistent with undisputed contemporary documents.[5][5] See, for example, Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 (Montevento) [49]. The principles that apply to an application for summary judgment are well established and have been summarised as follows:[6]Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: ... It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted.[6] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 (Sutton) [24], citing Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]. The plaintiff bears the onus in relation to enlivening the court's discretion to grant summary judgment under RSC O 14 r 1, on 'the ground' that the defendant has no defence to the relevant claim. That requirement, read together with RSC O 14 r 2, makes it necessary for the plaintiff to establish, by affidavit:(a)the facts necessary to make out the cause of action (that is, the essential elements of the claim); and(b)a belief that there is no defence to that claim.