Jones v Harvey Industries Group Pty Ltd
[2019] WADC 14
•1 FEBRUARY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JONES -v- HARVEY INDUSTRIES GROUP PTY LTD [2019] WADC 14
CORAM: SCOTT DCJ
HEARD: 10 OCTOBER 2018
DELIVERED : 1 FEBRUARY 2019
FILE NO/S: CIV 3056 of 2014
BETWEEN: TREVOR WAYNE JONES
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
Catchwords:
Application to dismiss action and related actions for abuse of process/want of prosecution - Action on inactive list - Entry for trial filed when action not ready for trial - Automatic removal from inactive list.
Appeal against order for discovery before disposition of application to dismiss
Legislation:
District Court Rules 2005 r 38(5), r 44E, r 44F, r 44G(1)
Result:
Application dismissed
Appeal allowed
Representation:
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Chapmans |
| Defendant | : | Clayton Utz |
Case(s) referred to in decision(s):
Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
Birkett v James [1978] AC 297
Harvey Industries Group Pty Ltd v Jones [2017] WADC 74
Lewandowski v Lovell (1994) 11 WAR 124
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Murcia & Associates (a firm) v Grey (2001) 25 WAR 209
Smith v Bank of Western Australia Limited [2010] WASCA 15
Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
Ulowksi v Miller (1968) SASR 277
SCOTT DCJ:
Harvey Industries Group Pty Ltd is the defendant in eight actions in this court of which this action (the Jones action) is one. The other actions are:
•Rhonda Megan Gaddes v Harvey Industries Group Pty Ltd, CIV 3057 of 2014
•Michael Bradley Wood v Harvey Industries Group Pty Ltd, CIV 3058 of 2014
•Mark Charles Lintott v Harvey Industries Group Pty Ltd, CIV 3059 of 2014
•James Mulder for the Estate of Vivienne Mulder v Harvey Industries Group Pty Ltd, CIV 3060 of 2014
•Darryl Werth v Harvey Industries Group Pty Ltd, CIV 3061 of 2014
•Antonio Michael Panetta v Harvey Industries Group, CIV 3063 of 2014
•Paul Yerbury v Harvey Industries Group Pty Ltd, CIV 41 of 2015
On 12 June 2018 the defendant filed an application in each action (application) for:
(i)an order that the purported Form 1 (entry for trial) filed in each action be set aside as an abuse of process and each action be dismissed by operation of r 44G of the District Court Rules 2005 (DCR); alternatively
(ii)an order that each action be dismissed for want of prosecution.
On 4 July 2018 the defendant filed an appeal from the decision of Deputy Registrar Harman made 27 June 2018 in the Jones action (appeal) that the defendant give discovery within 14 days.
For the sake of convenience the parties to each action have agreed that the application is to be dealt with in the Jones action only on the basis that each of the actions are substantially the same and a determination of the application will bind the parties in each of the other actions. Having said that, it will be necessary to make some reference to individual actions where events may differ.
In the event that the defendant's application to dismiss the Jones action is unsuccessful, I will deal with the appeal.
Evidence
The evidence relied upon by the parties with respect to the application is as follows:
Application - defendant
(a)Chamber summons dated 12 June 2018 and List of Orders Wanted dated 21 September 2018.
(b)Affidavit of Anna Louise Casellas affirmed 12 June 2018 and annexures (ALC affidavit).
(c)Supplementary affidavit of Madeleine Jane Clohessy sworn 4 November 2016.
(d)Chronology of Events.
(e)Response of 10 October 2018 to the plaintiff's chronology.
(f)Judgment of Derrick DCJ in Harvey Industries Group Pty Ltd v Jones [2017] WADC 74.
(g)Submissions dated 21 September 2018.
(h)Response to plaintiff's submissions dated 8 October 2018.
Application - plaintiff
(a)Submissions dated 8 October 2018;
(b)Chronology of relevant events dated 5 October 2018;
(c)Further submissions dated 9 October 2018.
Relevant chronology
In each action the plaintiff, as an ex‑employee of the defendant, alleges he/she was wrongfully dismissed from his/her employment in breach of his/her contract of employment. The relevant chronology of these actions is as follows:
March/April 2012
Each of the present plaintiffs filed a writ of summons in this court. None of the writs were served on the defendant within 12 months of each writ being issued and each of the actions was moved to the inactive cases list.
10 September 2013
The plaintiffs (other than Yerbury) filed chamber summonses to have their actions removed from the inactive cases list.
12 September 2013
Yerbury's action was dismissed.
19 September 2013
The remaining seven plaintiffs filed a chamber summons to extend the validity of the respective writs.
15 October 2013
Deputy Registrar Hewitt dismissed the applications to extend the validity of those writs.
An appeal by those seven plaintiffs was dismissed on 5 February 2014.
18 September 2014
New actions against the defendant were commenced by seven of the present plaintiffs, other than Paul Yerbury, who filed a writ of summons on 7 January 2015.
Mulder and Panetta served writs on the defendant on 14 February 2015 and each of the other six plaintiffs served writs on the defendant on 14 April 2015.
19 June 2015
The court made the following orders in each action (19 June orders):
(a) by 3 July 2015 each plaintiff file and serve a statement of claim;
(b) the defendant file and serve its defence within 21 days of the statement of claim being served;
(c) the plaintiff file and serve any reply within 14 days of the defence being served;
(d) the time within which the parties may make an application for summary judgment or to strike out any pleading be extended to seven days after the mediation conference;
(e) the parties attend a mediation conference before a registrar on a date to be fixed;
(f) not less than seven days before the mediation conference, the respective plaintiffs serve on each other party a without prejudice schedule of damages.
15 September 2015
Each of Gaddes, Wood, Mulder, Werth, Panetta and Yerbury filed a statement of claim and on the next day served the same on the defendant.
22 September 2015
Lintott filed and served a statement of claim.
30 September 2015
The defendant filed and served a defence in the Jones action.
6 October 2015
The defendant filed and served a defence in the Gaddes, Panetta and Yerbury actions.
9 November 2015
The defendant filed and served a defence in the Wood, Lintott, Mulder and Werth actions.
10 August 2016
The parties attended mediation which was unsuccessful and orders were made:
(a) that the defendant make any application for summary judgment and/or strike out of any pleading within 10 days;
(b) the entry for trial milestone be extended to 30 November 2016;
(c) pre‑trial conferences were dispensed with.
22 August 2016
The defendant filed, in each action, an application for summary judgment and in the alternative the statement of claim be struck out.
26 August 2016
The plaintiff in the Jones action filed and served a chamber summons seeking discovery.
14 September 2016
Deputy Registrar Harman made orders adjourning Jones' chamber summons for discovery and the defendant's chamber summons in the Jones action to a special appointment.
4 October 2016
Deputy Registrar Kubacz made orders that the defendant's summary judgment/strike out application in the other seven actions be heard with the chamber summons for discovery in the Jones matter at a special appointment on 17 November 2016.
8 November 2016
The plaintiff in the Jones matter filed and served an amended statement of claim and on 14 November 2016 the plaintiffs in the other seven actions filed and served an amended statement of claim.
14 November 2016
The defendant filed submissions in support of the defendant's summary judgment/strike out applications.
16 November 2016
The plaintiff in the Jones action filed submissions in support of the defendant's summary judgment/strike out application and the plaintiff's chamber summons for discovery.
17 November 2016
Deputy Registrar Harman ordered that:
(a) the eight summary judgment/strike out applications be adjourned sine die;
(b) the Jones chamber summons for discovery be listed on 7 December 2016;
(c) within 14 days the defendant file and serve any affidavit in relation to difficulties faced by the defendant in complying with the Jones chamber summons for discovery.
28 November 2016
The defendant filed notices of appeal in relation to the orders made 17 November 2016.
30 November 2016
The defendant filed a chamber summons for a stay of the orders made 17 November 2016 in the Jones action.
1 December 2016
The court issued a notice of default (entry for trial) in each of the eight actions. The plaintiff in each action other than the Jones action refused to sign a consent order extending the entry for trial milestone.
28 December 2016
The court issued notices in each action other than the Jones action informing the parties that the actions were on the inactive cases list.
14 March 2017
The notices of appeal filed by the defendant on 28 November 2016 in respect to the orders made 17 November 2016 in the Jones action were listed for hearing on 1 May 2017.
7 April 2017
The defendant filed chamber summonses in each action other than the Jones action for orders that the actions be removed from the inactive cases list and the notices of appeal from the orders made 17 November 2016 be listed for hearing on 1 May 2017. The chamber summonses were listed for on 24 April 2017.
24 April 2017
Orders were made removing the seven actions from the inactive cases list and listing the notices of appeal from the orders made 17 November 2016 on 1 May 2017.
26 April 2017
The defendant filed and served submissions in support of the appeals in each matter. The plaintiffs did not file submissions until two hours prior to the hearing of the appeal.
1 May 2017
The defendant's summary judgment/strike out applications and notices of appeal in each of the eight actions were heard by Derrick DCJ.
9 June 2017
Derrick DCJ handed down his decision in relation to the applications and defendant's notices of appeal (9 June orders) in which his Honour:
(i) upheld the defendant's appeal from the decision of the deputy registrar adjourning the dismissal applications pending determination of the Jones discovery application;
(ii) ordered substantial parts of the amended statements of claim to be struck out as disclosing no reasonable cause of action;
(iii) ordered the plaintiff in each action to file and serve a substituted statement of claim by 16 June 2017;
(iv) ordered the defendant in each action to file a substituted defence by 23 June 2017;
(v) ordered the defendant's application for indemnity costs in relation to the defendant's summary judgment/strike out applications and the appeal from the Jones discovery orders made by the deputy registrar be adjourned to a date to be fixed. The defendant was ordered to file and serve written submissions on or before 23 June 2017 and the plaintiffs to file and serve any affidavits and written submissions in response on or before 21 July 2017.
22 June 2017
The defendant filed and served submissions in relation to its application for indemnity costs.
3 July 2017
The court issued notices of default in each action notifying the parties that each action would become inactive if the plaintiffs did not enter the actions for trial by 18 July 2017 in respect to which on 14 July 2017 the defendant's solicitors wrote to the plaintiff's solicitors informing them that the actions would become inactive if they did not comply with the 9 June orders and foreshadowed that the defendant would not consent to the actions being removed from the inactive cases list.
20 July 2017
The plaintiff in each action did not comply with any of the 9 June orders and each action was placed on the inactive cases list.
21 July 2017
The plaintiff in each action did not file submissions or affidavits in relation to the defendant's submissions for indemnity costs in accordance with the 9 June orders.
24 July 2017
The associate to Derrick DCJ rang the solicitors for the plaintiffs regarding the 9 June orders and left a message. That call was not returned.
25 July 2017
The associate sent a facsimile to the solicitors for the plaintiffs regarding the plaintiffs' default in complying with the 9 June orders and requesting an urgent response. There was no response. The associate made a further phone call and left a message to which there was no response.
3 August 2017
Derrick DCJ called the matters on for directions with respect to the 9 June orders during which:
(a) his Honour outlined the failure of the plaintiffs' solicitors to respond to the messages left by his associate to which counsel for the plaintiffs responded that there was no excuse for that failure other than he had a solicitor assisting him who had left the firm suddenly;
(b) his Honour confirmed the failure of the plaintiffs to comply with the programming orders made 9 June 2017 for the filing of submissions and any affidavits on the issues of costs with respect to which the solicitors had sent a letter the day before to the effect that they had overlooked the need to do so;
(c) his Honour listed the defendant's indemnity costs application for 16 November 2017 and made orders that the plaintiffs file and serve any affidavits upon which they intended to rely and a written outline of submissions on or before 4 September 2017 on terms that the plaintiffs would not be entitled to rely on any affidavit material not filed and served when ordered. In addition all parties were to notify each other by 2 October 2017 if any of the deponents to any affidavit would be required for cross-examination at the hearing;
(d) counsel for the defendant informed his Honour that the substituted statements of claim had not been filed and served in accordance with the 9 June orders and that notwithstanding she had endeavoured to contact the solicitors for the plaintiffs on at least five occasions her attempts had not been successful. His Honour then alerted counsel for the plaintiffs about the need for there to be an application for an action to be taken off the inactive list and that if the action remained on the inactive list it would be taken to have been dismissed.
4 September 2017
The plaintiffs filed submissions in relation to the costs application but did not serve those submissions on the defendant's solicitors for a number of days.
3 October 2017
Having not heard from the solicitors for the plaintiffs by 2 October 2017 the solicitors for the defendant sent a facsimile to the plaintiffs' solicitors advising them that it was imperative that the defendant was notified on an urgent basis whether either deponent was required for cross‑examination in order for the defendant to be afforded adequate time to brief another solicitor in the event that neither was able to appear.
9 October 2017
The solicitor (Mr Singh) for the plaintiffs left a message with the solicitors for the defendant advising that neither deponent was required for cross‑examination. As a consequence one of those deponents, Ms Casellas, made preparations to appear at the costs hearing on behalf of the defendant.
20 November 2017
The defendant's solicitors received a facsimile from the solicitors for the plaintiffs that the deponents be made available for cross‑examination at the costs hearing on 24 November 2017.
20 November 2017
The solicitors for the defendant sent a facsimile to the plaintiffs' solicitors notifying them that the defendant objected to the plaintiff cross‑examining the deponents to the defendant's affidavits given the failure on the part of the plaintiffs to comply with the 3 August 2017 orders and by reason of the notification from the plaintiffs' solicitors on 9 October 2017 that the deponents were not required and requested the plaintiffs' solicitors by 5.00 pm that day to advise whether either of those deponents were required for cross‑examination. No response was received on that day.
21 November 2017
The solicitors for the defendant received a facsimile from the plaintiffs' solicitors confirming that the plaintiffs would require both deponents for cross‑examination resulting in the solicitors for the defendant seeking an urgent directions hearing before Derrick DCJ who was then in the middle of a criminal trial. His Honour listed the matter for a directions hearing at 4.30 pm on that day whereupon the solicitors for the defendant informed the solicitors for the plaintiffs of that hearing. At approximately 4.25 pm Ms Casellas received a telephone call to her mobile phone from Mr Singh notifying her that neither deponent was required for cross‑examination.
Entry for Trial
12 January 2018
The plaintiffs provided informal lists of discoverable documents to the defendant without seeking any consent from the defendant to waive discovery by affidavit pursuant to s 46(3) DCR.
16 January 2018
The plaintiff in the Panetta action and on 17 January 2018 the remaining plaintiffs (other than Lintott) filed an entry for trial, substituted statement of claim and schedule of damages which were served on the solicitors for the defendant on 18 January 2018.
22 January 2018
The court sent a notice to the parties that the Lintott action had been dismissed pursuant to r 44 of the DCR.
Subsequent pre-trial conferences - dates for which were endorsed on the entry for trial documents
13 February 2018
The defendant's solicitors attended pre‑trial conferences with respect to the Lintott and Gaddes actions as to each of which the respective plaintiff and the solicitor failed to attend without explanation. No orders were made in relation to the Lintott action as that action had been dismissed and the pre‑trial conference in relation to Gaddes was adjourned sine die.
15 February 2018
Pre‑trial conferences were listed for the matters of Wood and Mulder in respect to each of which orders were made for a listing conference on 9 April 2018.
20 February 2018
Pre‑trial conferences were listed for the Jones and Werth actions in respect to which there was no attendance by the respective plaintiff or solicitor without explanation. Orders were made listing those two actions for a listing conference on 9 April 2018.
28 February 2018
A pre‑trial conference was listed for the Panetta action and orders were made listing that action for a listing conference on 9 April 2018.
1 March 2018
A pre‑trial conference was listed for the Yerbury action in respect to which there was no attendance by the plaintiff or solicitor without explanation. Orders were made listing that matter for a listing conference on 9 April 2018.
9 April 2018
There was a listing conference for six of the actions (except Gaddes and Lintott) at which an order was made adjourning the six matters sine die
12 June 2018
The defendant filed chamber summonses for dismissal of each of the eight actions.
Discovery in Jones action
13 June 2018
The plaintiff sought a directions hearing for discovery which came before Deputy Registrar Harman who adjourned the matter until 27 June 2018.
25 June 2018
The defendant filed an affidavit of Ms Casellas in response to the plaintiff's summons for discovery filed 26 August 2016 in the Jones action.
27 June 2018
Deputy Registrar Harman made an order that the defendant give discovery within 14 days.
4 July 2018
The defendant filed and served a notice of appeal from the order made 27 June 2018.
Entry for trial
In each entry for trial, the plaintiff's solicitors certified that:
•The plaintiff has given discovery to, and permitted inspection by the defendant, the defendant has not done so, despite requests from the plaintiff;
•The plaintiff has complied with all case management directions and orders made by the court, save for the orders of Derrick DCJ on 9 June 2017;
•The plaintiff does not require any other interlocutory orders to be made;
•The plaintiff has complied with the RSC O 36A;
•The plaintiff has complied with the DCR r 36(1); and
•The plaintiff has complied with the DCR r 45C.
Relevant provisions of the DCR are as follows:
37.Entering a case for trial
(1)Unless otherwise ordered, the plaintiff must enter the case for trial within 120 days after the date on which a defence (or if there is more than one defendant, the first defence) is filed.
…
38.Plaintiff failing to enter case for trial, consequences
(1)If the plaintiff does not enter the case for trial in accordance with rule 37(1), the relevant registry must send each party a Form 2 (Notice of default (entry for trial)).
…
(2)After receiving a Form 2 —
(a)the plaintiff must, on or before the date specified in the form (which must be at least 14 days after the date of the form), enter the case for trial.
(b)a party, other than the plaintiff, may enter the case for trial even if the case is taken to be inactive under rule 44 or 44A.
(3)Rule 37(3), with any necessary changes, applies if a party other than the plaintiff enters the case for trial.
(4)If a party other than the plaintiff enters the case for trial, then, for the purposes of completing Form 1, all other parties (including the plaintiff) are to be taken to be available to attend a pre trial conference on any date unless notice to the contrary is filed prior to when the date of the pre trial conference is set.
(5)If under subrule (2) a case is entered for trial at a time when, by virtue of the Form 2 sent to the parties and rule 44 the case is inactive, the case ceases to be inactive.
44.Effect of non‑compliance with Notice of Default
If a plaintiff does not comply with rule 38(2)(a), the case is taken to be inactive.
44A.Cases inactive for 12 months deemed inactive
If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise.
…
44E.Consequences of case being on Inactive Cases List
If a case is on the Inactive Cases List, only these documents can be filed in the case —
(aa)a Form 1AA (Memorandum of appearance);
(a)a Form 1 (Entry for trial);
(b)a consent order finalising the case;
(c)a summons for an order under rule 44F(3);
(d)a summons for an order dismissing the case for want of prosecution;
(e)any document that relates to a document listed above.
44F.Removing cases from Inactive Cases List
(1)If a Form 1 (Entry for trial), or a consent order finalising the case, is filed in a case on the Inactive Cases List, the case is taken to have been taken off the list.
(2)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.
(3)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.
(4)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.
44G.Certain inactive cases taken to have been dismissed
(1)A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
Entry for trial - abuse of process
Defendant's submissions
The defendant submits that the plaintiff in each action was, by their solicitors, well aware, that the action was not ready for trial when the entry for trial was filed and served in January 2018. The matters relied on by the defendant are as follows:
(a)By the 9 June orders, the plaintiff in each action was ordered to file and serve a substituted statement of claim by 16 June 2017 - all but one pleaded cause of action having been struck out.
(b)On 20 July 2017 the plaintiffs were in default of each of the 9 June Orders and each action was placed on the inactive cases list on that day.
(c)Each action was scheduled to be dismissed for want of prosecution pursuant to r 44G(1) DCR on 19 January 2018. On 16 January 2018, in the Panetta action, and on 17 January 2018 with respect to the other plaintiffs (except Lintott), the solicitors for each plaintiff filed an entry for trial, a substituted statement of claim and a schedule of damages.
(d)At the date each entry for trial was filed each of those actions were on the inactive cases list and each plaintiff had for seven months been in default of the 9 June orders which required that plaintiff to file and serve a substituted statement of claim and schedule of damages.
(e)None of the plaintiffs had given discovery on oath pursuant to r 46(3) DCR – there having been no consent from the defendant to discovery by informal list.
The defendant contends that the solicitors for each plaintiff knew that each action was not ready for trial and that the solicitors filed the entry for trial in each action for the purpose of avoiding the consequence that each action would be automatically dismissed for want of prosecution due to it being on the inactive cases list (pursuant to r 44G DCR) and to avoid the need to make an application to remove the action from that list pursuant to r 44F(2) DCR.
The defendant says that by a facsimile from the plaintiffs' solicitors dated 22 December 2017 (annexure ALC114 to the ALC affidavit), the solicitors for the plaintiffs gave notice that they intended to list the plaintiffs' actions for trial. In response, by facsimile dated 3 January 2018 (annexure ALC116 to the ALC affidavit), the solicitors for the defendant dealt with a number of matters including the foreshadowed entry for trial in each action. They pointed out to the solicitors for the plaintiffs that the plaintiffs could not in good faith certify the matters which were required to be specified in the entry for trial. The solicitors for the defendant made clear that if the plaintiffs proceeded to attempt to enter the actions for trial, the defendant would rely upon that correspondence as evidence that the plaintiffs were well aware that the matters were not ready to be entered for trial and to do so would amount to an abuse of the court's processes.
Plaintiffs' submissions
The plaintiffs' solicitors filed a chronology about which there is no relevant dispute with the defendant's chronology about those events. In response to the plaintiffs' chronology, the defendant filed a further document dated 10 October 2018 which in the main took issue with the plaintiffs' description of some of the events in its chronology and included events which the defendant says that the plaintiffs had omitted to which reference has earlier been made in these reasons. In my view nothing turns on the identified differences.
The solicitors for the plaintiffs filed an outline of submissions on 8 October 2018 and 9 October 2018. No affidavit evidence was filed by the plaintiffs. A summary of those submissions and the defendant's response is as follows:
(a)Pursuant to the 9 June orders the plaintiffs had between 9 June 2017 and 20 July 2017 (only) to file and serve the substituted statement of claim.
The defendant says that by the 9 June orders each plaintiff was to file and serve the substituted statement of claim on or before 16 June 2017.
(b)Between 20 July 2017 and 19 January 2018 the plaintiffs were restricted as to the documents they were entitled to file and serve due to the provisions of r 44E DCR.
The defendant says that each plaintiff ought to have filed an application to have the action removed from the inactive cases list.
(c)In November 2017 the plaintiff attempted to confer with the defendant to have the actions removed from the inactive list by consent and again requested the defendant provide discovery in the Jones action. In response the defendant advised it would not consent to the matter coming off the inactive list and it again refused to comply with the plaintiff's request for discovery and inspection.
The defendant says that it had made clear to the plaintiffs' solicitors that any application for the cases to be removed from the inactive cases list would be opposed. As to the matter of discovery, there were still no pleadings by which issues were joined.
(d)In January 2018 each plaintiff, in accordance with r 44E and r 44F DCR, entered each action for trial which he/she was required to do by no later than 19 January 2018 despite the refusal of the defendant to provide discovery and inspection which was noted on the entry for trial.
The defendant says that on any view the actions were not ready for trial.
(e)Between January 2018 and 12 June 2018 each plaintiff attempted to move the matter forward however on each occasion the defendant opposed the plaintiffs' attempts and had submitted to the court on at least two occasions in that period that they were not required to provide or should not provide discovery and inspection.
The defendant says the plaintiff has adduced no evidence in support of this contention.
(f)On 12 June 2018 the defendant filed the present application.
(g)On 27 June 2018, Deputy Registrar Harman ordered the defendant in the Jones action to give discovery verified by affidavit which order has still not been complied with.
The defendant says that this is an order against which the defendant appeals.
(h)The defendant and its solicitors believe they are immune from the requirement to give discovery.
The defendant says that its solicitors have explained on a number of occasions to the solicitors for the plaintiffs that discovery cannot be given until the issues are joined by pleadings.
The solicitors for the plaintiffs submit that the court's processes continue to be abused by the defendant in refusing to provide discovery and inspection and then relying upon that refusal to try to prevent the plaintiffs from pursuing their cases. The solicitors for the plaintiffs say further that there is no evidence to support a suggestion that the plaintiffs wrongfully entered the actions for trial given that each plaintiff certified that he/she had not been provided with discovery and inspection by the defendant. Otherwise, the solicitors for each plaintiff say that each action was more than ready to be entered for trial and it was only the defendant's refusal to comply with the rules that had been holding it up.
In written and oral submissions counsel for the plaintiffs maintained that when the entry for trial documents were filed each action was then ready for trial.
In the face of the chronology and the other matters to which I have already referred I consider the submissions from the plaintiffs' solicitors that each action was ready for trial to be unmaintainable. I am satisfied that had been made clear by the defendant's solicitors in their correspondence of 3 January 2018. Discovery on oath had not been given by any parties and the defendant had no opportunity to consider the substituted statements of claim or the schedule of damages. Nor had any defence been filed. Nonetheless the plaintiffs by their solicitors, rather than being put to making an application to have these actions removed from the inactive cases list, chose to file an entry for trial, being one of the few documents capable of being filed pursuant to r 44E DCR, for the purpose of the actions ceasing to be inactive pursuant to r 38(5) DCR.
Had an application been made to remove each action from the inactive cases list it would have been necessary for each plaintiff to satisfy the court that if the action was to be allowed to continue it would be conducted in a timely way: Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74 [50] - [51]. To that end the history of the conduct of the action would be very relevant in determining whether the discretion ought to be exercised in favour of each plaintiff.
When the entry for trial in each action was filed there was then no power to countermand an entry for trial. That position appears to have resulted from an oversight in the DCR. To that end:
(a)Until 21 September 2018 there was no express power in the District Court Act 1969 (DCA) or DCR for a party to apply for an order countermanding an entry for trial.
(b)Section 52 of the DCA provides:
In all respects, except as expressly provided by or under this Act, the practice and procedure of the Court as a court of civil jurisdiction including the trial of certain cases with or without a jury, shall be the same as the practice and procedure of the Supreme Court in like matters.
(c)By r 6 of the DCR the Rules of the Supreme Court 1971 (RSC) apply to and in respect to any case in the District Court - save if there is a conflict or inconsistency between the DCR and the RSC, the DCR prevails.
(d)Until 16 August 2017 the power to apply to countermand an entry for trial in this court was derived from O 33 r 9 RSC. On 16 August 2017, O 33 r 9 was rescinded. It was not until 21 September 2018 that r 38B DCR which provided the power to countermand an entry for trial, became operative.
Did the filing of the entry for trial amount to an abuse of the court's processes?
This court has incidental powers to prevent its processes from being abused. In Murcia & Associates (a firm) v Grey (2001) 25 WAR 209 Steytler J said at [16].
However the supervisory or disciplinary jurisdiction referred to in these cases is that which is part of the inherent jurisdiction of the Supreme Court and it is to that court that solicitors are appointed as officers upon their admission to practice. The District Court does not have a like jurisdiction, although it does have incidental powers which are necessary for the exercise of such jurisdiction as is conferred upon it (see the definition of 'jurisdiction' in s 6 of the District Court of Western Australia Act 1969 and Grassby v The Queen (1989) 168 CLR 1 at 16), and those powers are sufficient, at least, to enable it to correct irregularities in, and frauds upon, its own procedure and rules and to prevent abuses of its process (see Mason v Ryan, above, at 340 and Duncan v Lowenthal [1969] VR 180 at 182). It is unnecessary, for present purposes, to explore the full limits of those powers.
In Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243(Steytler P) summarised the relevant principles in dealing with an abuse of the court's processes:
J L Holdings and case management principles
[45]In this jurisdiction, the submission is often made that it will almost always be an error of principle to fail to permit a litigant to litigate an issue that is fairly arguable, regardless of that litigant's non compliance with court procedures and orders. We are frequently referred to The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 and told that it supports this very broad proposition. In Osgood v Wham [2007] WASCA 178 [20], McLure JA has pointed out that this misconceived view of J L Holdings has produced a culture in the legal profession in this State of non compliance with court rules, practice directions and court orders (see also Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 [91] - [93]).
[47]In their judgment, Dawson, Gaudron and McHugh JJ endorsed what had been said by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, 710, as follows:
Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.
…
[53]It must, of course, be accepted that, as Dawson, Gaudron and McHugh JJ said, case management is not an end in itself and that the ultimate aim of the court is the attainment of justice, which no principle of case management can be allowed to supplant. However, that does not mean that case management principles can be ignored. As was explained in the Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [94], the effect of O 1 r 4A is that the court takes its own positive steps to require parties to conduct litigation with proper expedition and O 1 r 4B introduces management and supervision of litigation by the court to the extent that its resources permit in accordance with a system of positive case flow management (see also J & J Products v Ken Gray & Co (Unreported, WASCA, Library No 960219, 24 April 1996)) . A failure to comply with case flow management orders will be relevant. That will especially be so if the failures are repeated. It will even more especially be so if the failures are deliberate and unexplained, or if there is no acceptable explanation for repeated deliberate failures. In cases of the latter kind, the defaulting party runs grave risks: Fieldhouse [94]. That is because, as Wheeler J pointed out in Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 [87], it is an important consideration, although not the only consideration, that there is a need to ensure that orders of the court are not habitually disregarded. She went on to say [87] ‑ [88]:
There are a number of reasons why this is so, aside from the obvious need to maintain the authority of any orders of the court. The orders are made in order to advance the objectives set out in O 1 r 4A and r 4B of the Rules of the Supreme Court
Underlying those objectives are a number of factors. Those factors include a recognition of the prejudice to a fair trial which may ultimately be caused by delay, a recognition of the enormous stress and anxiety which is usually caused to litigants (particularly individual litigants …), and a recognition of the fact that undue delay and inefficient use of the court's resources by some litigants has the potential to impair access to the court by others. Finally, in a case such as the present, it must be remembered that unnecessary expense is incurred whenever it is necessary to write letters or make applications to the court prompting a party to do that which it is already obliged, by the Rules or by an order, to do.
[54]This case is in a worse category than one where there is no acceptable explanation for repeated deliberate failures to comply with orders of the court. In this case, the repeated failure to comply with the court's orders was part of a concerted plan to abort the trial and obtain a consequential opportunity to amend. The need to ensure that such conduct does not succeed in its object, and the need to deter others from engaging in such conduct, involves more than case management principles. Conduct of this kind gives rise to significant additional considerations in the exercise of the power to summarily dismiss an action.
Other relevant principles
[55]The striking out of a defence or the summary dismissal of an action for failure to comply with an order or orders of the court is a power that the court will exercise only with some reluctance: Freeman v Rabinov [1981] VR 539, 544; J & J Products. In Freeman, the Victorian Full Court said:
The making of such an order may be appropriate in the case of contumacy, but it may also be appropriate in a case in which a party has been persistently dilatory in taking steps in the action, or where it can be inferred, for instance from non-appearance on interlocutory proceedings, that the party will not or is unlikely to take the necessary steps.
Also, in J & J Products the court (Kennedy ACJ, with whom Pidgeon & Ipp JJ agreed) endorsed the proposition that orders of the court must be obeyed and that a litigant who deliberately, and without proper excuse, disobeys an order is not allowed to proceed (see also Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196, 1202). The court rejected the proposition that a springing order should necessarily have been made in a case of this kind.
[56]What was said in these cases must now be considered in the light of what was said by Dawson, Gaudron and McHugh JJ in J L Holdings, to the effect that case management principles may not be employed to shut a party out from litigating an issue which is fairly arguable, except perhaps in extreme circumstances (154). However, repeated deliberate failures to obey the court's orders and to comply with its processes might amount to extreme circumstances for this purpose, at least where there is no, or no acceptable, explanation for them. In such a case the point may be reached when the court has no real option, if respect for its authority and processes is to be maintained, than to dismiss an action or a defence, as the case may be. Moreover, as I have said, cases such as this, involving an unchallenged finding of abuse of the court's processes, give rise to significant additional considerations.
[60]In Batistatos Gleeson CJ, Gummow, Hayne and Crennan JJ said that what amounts to abuse of court process is insusceptible of a formulation comprising closed categories and that development continues [9]. They also endorsed what had been said by Gaudron J in Ridgeway v The Queen (1995) 184 CLR 19, 74 ‑ 75 as follows (citations omitted):
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose … as well as proceedings that are 'frivolous, vexatious or oppressive' … This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard … That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' … because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case … That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose … and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' … or 'productive of serious and unjustified trouble and harassment' …
Finally, for present purposes, they agreed with the following comments of McHugh J in Rogers v The Queen (1994) 181 CLR 251, 286:
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
In this case:
(a)By r 44E DCR only a limited number of documents can be filed given that the case was on the inactive cases list. One of those documents is an entry for trial.
(b)By r 38(5) DCR if a case is entered for trial at a time when the case is inactive the case ceases to be inactive.
(c)Ordinarily if a party takes issue with the entry for trial being filed that party would be entitled to make an application to countermand the entry. For the reasons to which I have already referred there was no such power when each entry for trial was filed.
(d)Each of these actions were clearly not ready for trial when the entry for trial documents were filed. Of that, there can be no real dispute. To that end, as I say, the appropriate course to have been undertaken by a plaintiff was to make an application pursuant to r 44F DCR for an order that the case be taken off the inactive cases list, within the six month period which expired on 19 January 2018. That was a course made known to the solicitors for the plaintiff by Derrick DCJ on 3 August 2017 and by the defendant's solicitors' correspondence.
I am of the view that the action taken by the solicitors for the plaintiffs in filing an entry for trial in each action in the circumstances, amounted to an abuse of the court's processes.
The defendant contends that the entry for trial in each action ought to be treated as if it had not been made resulting in the case being taken to be dismissed for want of prosecution pursuant to r 44G(1) DCR on the basis that it had been on the inactive cases list continuously for six months. To that end the defendant cites Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27. In that case Bowden DCJ dealt with an application to countermand an entry for trial in which the defendant's argument was that if the entry was countermanded it was effectively treated as a nullity with the consequence that, pursuant to r 44G DCR the plaintiff's action is dismissed for want of prosecution as it had been on the inactive cases list for six continuous months.
His Honour said that on a plain reading of r 44F(1) DCR an order to countermand the entry for trial takes effect from the day it was made. It does not have a retrospective effect.
His Honour then said:
This is not to say that in the appropriate case the court could not make an order, when countermanding an entry for trial, that the entry for trial be treated as if it had not been made (56).
Both O 33 r 9(5) of the Rules of the Supreme Court 1971 and the court's inherent power to prevent abuses of the court provide the court with the power in the appropriate case, where, for example, a solicitor had knowingly certified a case was in all respects ready for trial when he knew it was not and did so for the purposes of avoiding the case being dismissed for want of prosecution, to countermand the entry for trial and order that it be treated as if it had never been made and that in the appropriate case, it may, as a result of r 44G, result in the plaintiff's being dismissed for want of prosecution.
His Honour did not cite any authority for that proposition. Nonetheless, I am in agreement with his Honour that, depending on the surrounding circumstances in which entry for trial was filed when an action was not then ready for trial, it would be open to strike out an action for abuse of process.
In this case however, notwithstanding that the appropriate course would have been for the plaintiff in each action to have made an application under r 44F DCR, I am not satisfied that the action taken by the plaintiff's solicitors in filing an entry for trial in each action, albeit taking advantage of r 38(5) DCR, constituted such an abuse of process as would properly result in an order that these actions be dismissed.
Although I am satisfied that the filing of the entry for trial in each action was undertaken by the solicitors for the plaintiffs in the knowledge of the matters referred to above, it remains the case that on the same day that the entry for trial in each action was filed, the plaintiff filed a substituted statement of claim and schedule of damages. Whilst that pleading and the schedule were well out of time having regard to the 9 June orders they were nonetheless then filed enabling each case to be advanced.
Although the solicitors are the agents for each plaintiff who is bound by his/her solicitor's actions, I do not consider in the circumstances of these cases that a plaintiff ought to suffer the inevitable prejudice of their action being statute barred.
As a result, I do not consider it appropriate to dismiss each plaintiff's action on this ground.
Should the plaintiffs' actions be struck out for want of prosecution
The use of the incidental power of this court to prevent its processes from being abused includes circumstances where there has been want of prosecution of an action. Where a party seeks to have an action struck out for want of prosecution there are five matters which the court will usually consider in the exercise of its discretion:
•The length of the delay;
•The explanation for the delay;
•The hardship to the plaintiff if the action is dismissed and the cause of the action left statute barred;
•The prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
•The conduct of the defendant in the litigation.
See Ulowksi v Miller (1968) SASR 277, 280 (Bray CJ); Lewandowski v Lovell (1994) 11 WAR 124, 130 - 135 (Murray J, Kennedy & White JJ agreeing); The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 [100]; Smith v Bank of Western Australia Limited [2010] WASCA 15 [14] (Pullin JA), [78] (Newnes JA); Mariotti (ibid).
Three other matters to which the court should have regard in exercising its discretion are:
(a)Whether any default has been intentional and contumelious, for example, disobedience to a pre-emptory order of the court or conduct amounting to an abuse of the process of the court; or
(b)Whether there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyers and if so;
(c)Whether such delay:
(i)will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or
(ii)is such as is likely to cause or to have caused serious prejudice to the defendant.
See Birkett v James[1978] AC 297, 318 (Lord Diplock); Lewandowski (130 - 135); Hancock (98); Smith (13), (78).
It is inappropriate to take these considerations and use them as a check list to be ticked off one after the other. Rather, as was made clear in Hancock (103):
They are all things to which the court should have regard and they will usually be persuasive. But the absence of one or more of them from the credit or debit side of the check list process will not necessarily determine the result. It will always be necessary for the court to stand back and ask: what does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case?
I have earlier set out in table form a brief history of the current actions and the actions which preceded them. The solicitors for the defendant submitted that the conduct of the plaintiffs and or their solicitors constituted a contumelious disregard for court orders and processes and courteous communications to facilitate the efficient conduct of the actions. Further examples relied on by the defendant are as follows:
(a)The failure to comply with the orders of Registrar Kingsley on 19 June 2015 (19 June orders) to file and serve a statement of claim by 3 July 2015. (ALC affidavit [25], [27], [29], [31] and [33].
(b)The failure to comply with the 19 June orders to provide to the defendant and the registrar prior to the mediation conference listed for 24 June 2016, a without prejudice schedule of damages resulting in the mediation being adjourned to 10 August 2016. The without prejudice schedule of damages was provided on 2 August 2016. (ALC affidavit [25], [39], [60] - [65].)
(c)The plaintiffs/plaintiffs' solicitors failed to appear at court hearings on numerous occasions without explanation. (ALC affidavit [167], [171] - [176], [272] - [284].)
(d)The solicitors for the plaintiffs failure to comply with case management directions, the DCR, the RSC, the Legal Professional Conduct Rules 2010 (WA) and the Supreme Court of Western Australia Consolidated Practice Directions such as:
(i)the failure to enter the actions for trial by the milestone date as required by r 37(1) DCR on multiple occasions, resulting in notices of default being issued by the court (ALC affidavit [36], [37], [44], [51], [53], [159], [191];
(ii)the refusal to confer in relation to the defendant's summary judgment/strike out application in accordance with O 59 r 1 RSC and Consolidated Practice Direction 4.3.2 (ALC affidavit [73] - [83]);
(iii)the failure to comply with r 61 DCR (in each matter except for Jones) which required that a list of documents to be relied upon must be filed and served at least seven clear working days before the hearing in relation to the special appointment listed for 17 November 2016 (ALC affidavit [120]);
(iv)the failure to comply with r 61 DCR which required that an outline of submissions and list of authorities be filed and served at least two clear working days before the hearing in relation to the special appointment listed for 17 November 2016 (ALC affidavit [125], [129] - [131]) and the appeal before Derrick DCJ listed for 1 May 2017 (ALC affidavit [178]).
(e)The solicitors for the plaintiffs failure to correspond with the solicitors for the defendant about matters concerning the efficient conduct of the action creating undue delay and hardship for the defendant such as:
(i)the 19 June orders required that the parties attend mediation on a date to be fixed. On 8 March 2016 the defendant's solicitors sent a letter to the plaintiffs' solicitors seeking confirmation whether the plaintiffs' solicitors would make enquiries with the court to have the matters listed for mediation but received no response. The defendant's solicitors were required to follow up the plaintiffs' solicitors until 17 May 2016 in order to obtain unavailable dates for the mediation – nearly 12 months after the order was made requiring the parties to attend (ALC affidavit [40] - [42], [47] - [48], [57] - [58]);
(ii)prior to filing the defendant's summary judgment/strike out application, the defendant's solicitors attempted to confer with the plaintiffs' solicitors as required by the DCR but those attempts were unsuccessful (ALC affidavit [73] - [74]);
(iii)the plaintiffs' solicitors failed to respond to the defendant's solicitor's email enquiring whether the plaintiff intended to file or rely on any documents at the special appointment on 17 November 2016 and failed to respond to an email sent by the defendant's solicitors to the plaintiff's solicitors asking to be advised if the plaintiff intended to file a list of documents or outline of submissions in the actions other than Jones with respect to that special appointment (ALC affidavit [128], [131]);
(iv)the defendant's solicitors made numerous attempts to confirm with the plaintiffs' solicitors regarding the plaintiff's failure to comply with the 9 June orders. The plaintiff's solicitors failed to return the defendant's solicitors telephone calls regarding the failure to file substituted statements of claim in accordance with those orders and failed to provide an explanation for that failure (ALC affidavit [188] - [189], [196], [198]);
(v)the plaintiffs' solicitors failed to respond to the court's letter and telephone calls enquiring as to why the plaintiff had not complied with the 9 June orders (ALC affidavit [200] - [202]);
(vi)prior to the costs hearing listed on 24 November 2017, the plaintiff's solicitors failed to adequately communicate the plaintiffs' position with respect to whether the deponents of affidavits sworn on behalf of the defendant would be required for cross‑examination, thereby creating unnecessary delays and costs including an urgent listing before Derrick DCJ (ALC affidavit [224] - [243]);
(vii)the plaintiffs' solicitors failed to respond to various emails and telephone calls made by the defendant's solicitors to discuss the pre‑trial conferences which were listed for all eight matters following the filing of the Entry for Trial so as to avoid the need to appear to vacate or adjourn the pre‑trial conferences in accordance with the orders made by Registrar Kubacz on 10 August 2016 (ALC affidavit [272] ‑ [284]).
(f)Inordinate and inexcusable delays on behalf of the plaintiffs including:
(i)the earlier actions were on the inactive cases list in 2014 and ultimately dismissed. The writs of summons were never served on the defendant;
(ii)despite the decision on the appeal in the earlier actions referring to the ongoing prejudice suffered by the defendant by the plaintiff's failure to serve the original writs on the defendant, there was a significant delay in the plaintiff commencing the current proceedings and in serving the writs on the defendant (ALC affidavit [13], [14] - [15]);
(iii)the defendant's solicitors were required to make multiple attempts to contact the plaintiff's solicitors to schedule a mediation pursuant to the 19 June orders and were unable to provide unavailable dates for the mediation nearly 12 months after the order was made. When the mediation was ultimately listed, the plaintiff's solicitors sought an adjournment one day prior to the mediation due to non‑compliance by the plaintiffs with court orders requiring it to be relisted two months later (ALC affidavit [40] - [42], [45], [47] - [48], [57] - [58], [59] ‑ [65]);
(iv)each action has been on the inactive cases list twice (other than the Jones action which has been inactive once). By reason of the plaintiff's default in complying with the 9 June orders, causing the court to call the matter on for directions on 3 August 2017, the default continued for a further five months despite the direction of Derrick DCJ that the delay was inexcusable (ALC affidavit [204] ‑ [214], [266]).
Counsel for the defendant submits that this is a case where the actions ought to be dismissed for want of prosecution given it has, counsel says, all the hallmarks of litigation which modern principles of case management are designed to avoid, namely delay, excessive costs, prejudice, discourteousness and injustice citing Steytler P in Mariotti (53).
Plaintiffs' submissions
A summary of the plaintiffs' submissions and the defendant's response is as follows:
(a)The progress of the actions between April 2015 and 10 August 2016 was determined by the decision of the court to have them first dealt with by way of a mediation conference before the actions proceeded any further.
To that end the defendant says that the 19 June orders required the plaintiff to file and serve a statement of claim by 3 July 2015 and the defendant file a defence within 21 days of service. It was not until September 2015 that the statements of claim were filed.
(b)Following the mediation conference on 10 August 2016 the plaintiff served a request for discovery on the solicitors for the defendant and in response the defendant refused to comply with that request and filed an application to strike out the plaintiffs' actions.
The defendant says that the request for discovery was served on its solicitors after its solicitors wrote to the plaintiff's solicitors advising that it intended to make a summary judgment/strike out application.
(c)Between August 2016 and June 2017 the plaintiffs were prevented from progressing their actions further by the defendant's summary judgment/strike out application and its refusal to provide discovery on the basis that its applications ought to be heard first before it was called upon to respond to the plaintiff's request for discovery.
The defendant says that its approach was endorsed by Derrick DCJ on the hearing of those applications on 1 May 2017.
(d)Between 9 June 2017 and 27 June 2018 the defendant continued to refuse to provide discovery in response to the request made by the plaintiff in August 2016.
The defendant says that the plaintiffs' statements of claim had been struck out and no substituted statements of claim were filed until January 2018.
Determination
Length of delay
Notwithstanding the dismissal of the original action following the failure on the part of each plaintiff to serve the writ, after the new writ was issued on 18 September 2014, it was not until February - April 2015 before the defendant was served with each of the new writs.
By the 19 June orders, the plaintiff was ordered to file and serve the statement of claim by 3 July 2015 and the defendant was ordered to file and serve a defence within 14 days of service of the statement of claim and thereafter the action was to be set down for a mediation hearing with a view, no doubt, to avoiding further costs being incurred by the parties pending an opportunity to mediate.
Each plaintiff did not file a statement of claim until September 2015. It was then not until 10 August 2016 that the mediation conference was held. Primarily the responsibility for the delay fell at the feet of each plaintiff. Having said that, it was always open to the defendant to bring the actions back before the court and to seek orders which would expedite the mediation proceedings.
Between August 2016 and May 2017 the actions did not progress given the programming of the defendant's summary judgment/strike out applications which were filed on 22 August 2016 before finally being listed for hearing and heard on 1 May 2017. His Honour handed down his reserved decision on 9 June 2017. The delay of 11 months in the advancement of the actions during this period could not, in my view, be due to fault on the part of the plaintiffs. There was no utility in the actions progressing until these applications were dealt with.
The delay in this action from 9 June 2017 until late January 2018 was then a delay which lay entirely at the feet of the plaintiffs who failed without any proper cause being demonstrated, to comply with the 9 June orders resulting in each action being placed on the inactive case list until the entry for trial in each action was filed.
There is no merit in the plaintiffs' assertion that in some way the defendant caused any delay by failing to give discovery of documents in the Jones action in response to the plaintiff's request on 26 August 2016. On 22 August 2016 the defendant had filed and served the summary judgment/strike out applications. Derrick DCJ struck out the statement of claim in each action and as a consequence there were no pleadings on foot such that the issues were defined and the DCR required either party to give discovery.
The period between each entry for trial being filed and 12 June 2018 when the defendant filed the applications before me is, in my view, a delay for which the plaintiffs are not responsible. Although by the orders made by Deputy Registrar Kubacz on 10 August 2016 pre‑trial conferences were dispensed with and the plaintiffs could readily have acted in concert with the defendant to vacate the pre‑trial conferences which were allocated to each action once an entry for trial was filed causing unnecessary appearances by the defendant, there is no reason apparent to me why the defendant could not have filed the present application well before 12 June 2018.
Explanation for the delays
In the main there were no reasonable explanations by the plaintiffs for the delay for which they and/or their solicitors were responsible.
The hardship to the plaintiffs if the action is dismissed
In the event that the actions are dismissed then the plaintiffs will be statute barred from pursuing their respective claims. The detriment to the plaintiffs is self‑explanatory.
The prejudice to the defendant if the action is allowed to proceed notwithstanding the delay
There is no evidence before me as to whether the defendant will suffer any real prejudice or risk being denied a fair trial. To that end, absent any evidence, I assume that the witnesses who would be likely to be called to give evidence on behalf of the defendant are available and have been proofed having regard to the advent of the initial action and the present action. Although the defendant asserts there to be a prejudice to it by the delay, the defendant has not condescended as to particulars as to what that prejudice will be.
The conduct of the defendant in the litigation
My view is that the defendant has endeavoured in the main to progress this action and the other actions in a proper and purposeful manner. Save for the periods leading up to the hearing before Derrick DCJ and between late January to 12 June 2018, fault for the delays in these actions lie with the plaintiff and or their solicitors.
The question for me is whether in the end, justice is properly served by an order being made that the actions be dismissed for want of prosecution in these circumstances.
Notwithstanding that the plaintiffs are bound by the actions of its solicitors, the unexplained delays, repeated failures to comply with case management rules and court orders, the circumstances in which the entry for trial documents were filed and the discourteous conduct on the part of the plaintiffs in these actions fall primarily at the feet of the plaintiffs' solicitors. If the actions are dismissed it will be the plaintiffs who will suffer by their actions being statute barred.
In the end, given that there has been substituted statement of claim and schedule of damages filed with respect to each of these actions, I am not persuaded that the appropriate disposition is for these actions to be dismissed for want of prosecution. Rather justice will be served by the actions being managed with tight programming orders as to the pleadings and interlocutory matters through to the earliest possible trial.
In the event, the applications to dismiss the plaintiffs' actions for want of prosecution are refused.
Appeal with respect to discovery
This appeal is from the decision of Deputy Registrar Harman made 27 June 2018 in the Jones matter on the plaintiff's chamber summons for discovery dated 26 August 2016. The deputy registrar made the following orders:
1.Within 14 days of the date of this order, the defendant do make a list of the documents which are or have been in its possession, custody or power relating to any matter in question in the action and do make an affidavit of its secretary verifying that list and do serve a copy on the plaintiffs; and
2.The defendant do pay the plaintiffs' costs of the application in any event.
On 17 July 2018 Registrar Kubacz ordered that the appeal be listed for a half day hearing before a judge on 26 September 2018 at 2.15 pm and that the orders made by Deputy Registrar Harman on 27 June 2018 be stayed until the hearing of that appeal.
On 26 September 2018 orders were made that:
(a)the defendant's appeal be adjourned to 10 October 2018 to be heard with the defendant's application for dismissal for abuse of process and want of prosecution dated 12 June 2008;
(b)the orders made by Deputy Registrar Harman on 27 June 2018 be stayed until determination of the appeal; and
(c)that the costs of 26 September 2018 and of the plaintiff's chambers summons filed 26 August 2016 be reserved.
Pursuant to r 50(1) DCR the appeal is by way of a reconsideration of the evidence that was before the Deputy Registrar and as such is an appeal by way of hearing de novo. As such it is not necessary for the defendant to establish appealable error on the part of the deputy registrar.
The documents upon which the defendant relies are:
(a)the judgment of Derrick DCJ in Harvey Industries Group Pty Ltd v Jones [2017] WADC 74;
(b).affidavit affirmed by Anna Louise Casellas on 12 June 2018;
(c)affidavit affirmed by Anna Louise Casellas on 25 June 2018;
(d)transcript of proceedings before the deputy registrar on 27 June 2018.
(e)written submissions dated 21 September 2018 and submissions in response to the plaintiff's submissions dated 8 October 2018.
The plaintiff filed submissions dated 25 September 2018, supplementary submissions dated 8 October 2018, further submissions dated 9 October 2018 and a chronology of relevant events dated 5 October 2018.
I have, earlier in these reasons, set out in table form the relevant chronology.
Summary of defendant's submissions
The defendant submits that:
(a)On 22 August 2016 the defendant filed eight summary judgment/strike out applications which were ultimately determined by Derrick DCJ.
(b)On 26 August 2016, after being served with those applications the plaintiff filed a chamber summons for discovery.
(c)By the 9 June orders the vast majority of the plaintiff's claims in the statements of claim were struck out and the parties were ordered to file substituted statements of claim and defences. As a consequence, the actions could not continue unless and until the 9 June orders were complied with.
(d)The actions were placed on the inactive cases list on 20 July 2017, none of the 9 June orders having been complied with.
(e)The plaintiffs purported to enter the actions for trial on 17 January 2018 in circumstances where the actions were not ready to be entered.
(f)On 8 February 2018 the defendant's solicitors notified the solicitors for the plaintiffs of the defendant's intention to make an application for dismissal of each action for abuse of process/want of prosecution and on 12 June 2018 those applications were made.
(g)Any order for discovery ought not be granted pending the disposition of the defendant's applications for dismissal because:
(i)the dismissal applications turned upon questions of law not fact: see Derrick DCJ in Harvey Industries [22];
(ii)if the defendant's application for dismissal was successful that would wholly dispose of each action and the time and expense undertaken by the defendant in providing discovery prior to that determination would be wasted;
(h)The substituted statements of claim do not fully comply with the 9 June orders and in the Jones action additional claims have been raised by the plaintiff.
(i)As a consequence there is an uncertain basis upon which any discovery could be ordered in addition to which the pleadings are not closed in any action and as such there has been no joinder of issues.
Plaintiffs' submissions
The plaintiff contends:
(i)The defendant has failed to comply with requests for discovery without putting forward a meaningful reason for that refusal;
(ii)Following the mediation conference on 10 August 2016 the plaintiff made a request for discovery from the defendant in response to which not only did the defendant refuse to comply with that request but it also filed and served its first application to strike out the whole of the plaintiff's action;
(iii)Between 9 June 2017 and 27 June 2018 the defendant continued to refuse to provide discovery in response to the request made by the plaintiff from August 2016;
(iv)Between January 2018 and 12 June 2018 the plaintiff attempted to move the matter forward however on each occasion the defendant opposed the plaintiff's attempts;
(v)The defendant has refused to comply with this interlocutory step for over two years which as a consequence has delayed the plaintiff's attempts to move this action forward. If the defendant had complied with the request in August 2016 or by no later than June 2017 this action would now have been set down for trial;
(vii)Since the plaintiff filed the entry for trial, the substituted statement of claim and the schedule of damages there has been no request for particulars of the substituted statement of claim nor any application made by the defendant to strike out all or any part of the substituted statement of claim. The defendant took until 12 June 2018 to file the application for dismissal in this and the other actions.
Determination
The plaintiff's submissions that discovery should have been given by the defendant at some time after August 2016 and before January 2018 has no merit. By the 9 June orders the majority of the statement of claim which by then had been filed had been struck out by Derrick DCJ and no further pleading of a substituted statement of claim had been filed by the plaintiff. The issues which had been joined by the pleadings as at August 2016 had fallen away pending the filing of a substituted statement of claim in accordance with those orders.
It is true that the defendant ought, in my view, to have made its application to strike out this action well before 12 June 2018 given that it had foreshadowed that course in February 2018. It took far too long for the application to be made in circumstances where proceedings were effectively on hold.
However the application for dismissal was made on 12 June 2018 and it was not until after that date that the plaintiff's chamber summons of August 2016 was relisted for hearing before the deputy registrar at which time the orders were made.
In my view notwithstanding the delay on the part of the defendant in making the application for dismissal, it was not appropriate for an order for discovery to be made against the defendant having regard to the fact that if the applications for dismissal were successful then the costs of giving discovery would have been wasted.
Alternatively if the applications were dismissed then discovery would properly be ordered once the issues had been joined by the pleadings.
As a consequence the appeal against the orders made by the deputy registrar is upheld.
As I have foreshadowed I propose to tightly programme the steps to be taken in this action and the other actions in order that they can progress to a trial at the earliest reasonable opportunity.
I will hear counsel as to the appropriate programming orders and with respect to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
Associate to the Honourable Judge Scott1 FEBRUARY 2019
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