Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd - [2001] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KEYSIDE INVESTMENTS (WA) PTY LTD -v- QUARTZ WATER LEONORA PTY LTD [2001] WASCA 156

CORAM: ROBERTS-SMITH J

HEARD: 20 APRIL 2001

DELIVERED : 20 APRIL 2001

FILE NO/S: SJA 1109 of 2000

BETWEEN: KEYSIDE INVESTMENTS (WA) PTY LTD
Applicant
AND
QUARTZ WATER LEONORA PTY LTD
Respondent

Catchwords:

Appeal - Application to set aside order dismissing appeal for want of prosecution - Power to set aside order already made - O 58 r 22 Supreme Court Rules - Inherent jurisdiction of court - Justice best served by setting order aside - Application granted

Legislation:

Mining Act 1987 (WA), s 147, s 150(b)

Rules of the Supreme Court (WA), O58 r 22 and r 23, O 59 r 4 and r 7

Result:

Application granted
Order dismissing appeal for want of prosecution set aside
Applicant's solicitors to pay costs of both parties to be taxed

Representation:

Counsel:

Applicant: Mr A J N Aristei
Respondent: Mr J Collins

Solicitors:

Applicant: Michael Tudori
Respondent: Lawton Gillon

Case(s) referred to in judgment(s):

Bell Group NV (in liq) v Aspinall & Anor (1998) 19 WAR 561
Taylor v Taylor (1979) 143 CLR 1

Case(s) also cited:

Cameron v Cole (1944) 68 CLR 571
Harkness v Bells' Asbestos and Engineering Limited [1967] 2 QB 729
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Metroinvest Ansalt v Commercial Union Assurance Co Limited [1985] 1 WLR 513

ROBERTS-SMITH J: This is an application by Chamber summons to set aside an order made on 2 April 2001 dismissing the appellant's appeal for want of prosecution to be set aside. The present Chamber summons is dated 10 April 2001. It is, I think, necessary briefly to give some history of the matter as it came before me on 2 April and as it comes before me today.
The substantive matter is an appeal by way of notice of appeal under section 147 of the Mining Act 1978 (WA), and that notice was filed on 5 July 2000. It is not necessary to canvass the nature or grounds of appeal. Suffice to say, the process envisaged by the relevant provisions of the Mining Act is extremely unusual and may perhaps be summarised as requiring the filing of the notice of appeal (as was done) and subsequently the appellant writing to the Mining Registrar and requesting that the record of proceedings in the Mining Court be forwarded to the Supreme Court, and then the filing in the Supreme Court of that letter of request.
There was considerable delay in the prosecution of this appeal. Much of it had to do with the difficulty, as it appears from the affidavits, in obtaining the record of proceedings from the Mining Court. One serious deficiency, as I recall it, was the failure of the appellant to file in this court the letter of request to the Mining Registrar.
In any event, after considerable delay the respondent filed a Chamber summons in which there was an application to dismiss the appeal. That Chamber summons was dated and filed on 9 March 2001. That was supported by an affidavit of Mr Gary Hamilton Lawton sworn 9 March in which he deposed to the history of the matter and, in particular, that although on 26 July 2000 a copy of a letter was received from Simon Watters of counsel dated 25 July addressed to the Supreme Court registry purporting to apply to have the appeal set down for hearing, there was on 27 July a copy of a letter received from the mining registrar stating that no request for documentation had been received under the relevant provision of the Mining Act, that being s 148(4), and that on receipt of such request, the relevant documentation would be forwarded to this Court.
Mr Lawton continued then to depose in his affidavit that, having received no further correspondence from any party for approximately 5 months, he caused a letter dated 28 December 2000 to be sent to the appellant's solicitor requesting that, in light of the lack of developments in the matter, a notice of discontinuance be filed.
He deposed that as at the date of swearing the affidavit he had received no response to his letter of 28 December 2000 and that there was inordinate and inexcusable delay on the part of the appellant and the appellant's solicitor, and that was the basis upon which the application to dismiss for want of prosecution was being made. In response to that, there was an affidavit filed by Michael Tudori, barrister and solicitor, who was the solicitor for the appellant, in which he set out the history of the matter; and, again, it is probably not necessary for me to canvass that for the purposes of the present proceedings, save to say that Mr Watters wrote to the Mining Registrar on 28 July 2000 requesting the transmission of documents to the Supreme Court, and by letter dated 4 August 2000 the Mining Registrar wrote back confirming documentation had that day been forwarded to the Principal Registrar of this Court.
That having been done, Mr Tudori then applied pursuant to s 150(b) of the Mining Act for permission to prosecute the appeal. This was in support of a further Chamber summons filed on behalf of the appellant on 29 March seeking an order that the appeal be set down for hearing pursuant to s 150(b) of the Mining Act and was in response to an order made by Miller J on 26 March in relation to the respondent's application for an order dismissing the appeal.
On 26 March Miller J had made an order that that application be adjourned for 7 days to enable the appellant to make a formal application under s 150(b) of the Mining Act. That is a particular provision which allows a respondent to apply for an appeal to be dismissed or struck out or an applicant to be given leave to prosecute the appeal.
The 7 days, of course, brought the matter to 2 April, which was the date upon which it came before me. In the meantime, as I have already said, the appellant had filed the application and affidavit indicated by Miller J as being the appropriate course pursuant to s 150(b) of the Mining Act.
When the matter did come before me on 2 April, there was no appearance on behalf of the appellant. Counsel for the respondent on that basis applied for the order sought in the chamber summons seeking an order for dismissal to be made. That application was granted and the appeal was struck out for want of prosecution and an order was made that the appellant pay the respondent's costs of the application, including reserved costs, to be taxed.
In support of the application which is now before me, the appellant contends, principally by way of the affidavit of Simon Barry Watters sworn 10 April 2001 and filed on 11 April, that there was a misunderstanding or confusion on the part of counsel who appeared before Miller J on 26 March 2001. Mr Watters indicates in his affidavit that he was unavailable to attend on that date and other counsel was briefed for that particular purpose.
It seems, in short, that the explanation is that counsel who appeared on that occasion simply understood the effect of the order made by Miller J was to adjourn the respondent's application to dismiss for 7 days to enable the appellant to file the s 150(b) documents within that period and that having been done and a return date given for the hearing of that application, which was subsequent to 2 April, there was no requirement nor need to attend on 2 April.
I think, without putting too much of a gloss on it, that essentially summarises the appellant's explanation for the non-attendance on that date and it is now said, on the appellant's behalf, that in those circumstances it would be unjust to allow my order of dismissal to stand and that it should be set aside.
The first question, of course, is whether or not there is in fact power for me to now set aside the order I made on 2 April. As to that, Mr Aristei, who appears on this occasion for the appellant, relies firstly on O 58 r 22(4) of the Rules of the Supreme Court. That particular subrule is applicable by virtue of O 59 r 7 which provides that O 58 r r 22 to 28 with any necessary changes apply in relation to an application in Chambers under this order in the same way as they apply to an application made by originating summons. In that context therefore I turn to r 22 of O 58.
Rule 22(1) deals with the situation where a party fails to attend on the hearing of an originating summons - for present purposes I will simply describe the proceedings as "the process" - and says that the Court may proceed in the party's absence if, having regard to the nature of the application, the Court considers it expedient to do so.
Rule 22(2) provides that before so proceeding the Court may require to be satisfied that the party was given proper notice of the time appointed for the hearing and, as to that, it seems to me that clearly that requirement was complied with given the fact that at the hearing before Miller J, counsel appeared for both parties and the matter was in terms adjourned for 7 days.
Subrule (3) of r 22 then stipulates that where the Court hearing an originating summons has proceeded in the absence of a party, then provided that any order made on the hearing has not been perfected, the Court, if satisfied that it is just to do so, may rehear the originating summons.
In this regard Mr Aristei referred to Bell Group NV (in liq) v Aspinall & Anor (1998) 19 WAR 561 and particularly at 571. In that case the Full Court was considering an application to set aside an ex parte order which had been made extending the validity of a writ.
Reliance there was placed upon O 58 r 23 which expressly provides that an ex parte order may be set aside, and in that regard the Full Court pointed out that in that case the appellant had made an application for extension of validity of the writ within the 12-month limitation period, and the order granting the extension was made before the period had expired, with the result that the order was valid and regular on its face.
Further, the writ had been served within the extended period and so once service had been effected, the order or orders extending the validity period had been fully executed and were spent. It was against that background that the Full Court went on to say at 571:
"It is in these circumstances that the application to have the orders set aside came to be considered. It seems to us that additional caution was called for in dealing with the application. We are not saying that the mere fact that an order has been fully carried out precludes review. That would be inconsistent with the plain wording of O 58 r 23 and could lead to an unfortunate result."
In my view there is a striking contrast between the terms of r 22(3) and r 23 of O 58. That contrast is that the latter simply empowers the Court to set aside any order which has been made ex parte, whereas r 22(3) empowers a court to rehear the originating summons or process if satisfied it is just to do so but only provided any order made on the hearing has not been perfected. So there is an express precluding of an order for the rehearing of the process if an order made on the hearing has been perfected.
That, of course, is the situation here, as it is common ground that following the making of my order on 2 April, it was formally extracted and served. In my view the appellant derives no assistance in these circumstances from O 58 r 22(3).
Mr Aristei then turned to subrule (4) of the same rule which provides that:
"Where an application has been dismissed without a hearing by reason of the failure of the party who took out such summons to attend the hearing, the court, if satisfied that it is just to do so, may allow such summons to be restored to the list and again brought on for hearing."
The argument advanced on behalf of the appellant in this regard is that this provision has to be read as analogous to the notice of appeal being described by the term "originating summons," so that according to Mr Aristei's contention the effect of it would be that where the notice of appeal has been dismissed without a hearing by reason of the failure of the party who took it out to attend the hearing, then the Court may allow it to be restored to the list and again brought on for hearing.
Once again, however, it seems to me that the proper construction of that subrule leads necessarily to the conclusion that it is not the originating process in the sense of the initial originating process which is being referred to there but rather the process whereby the parties come before the court on the Chambers application and which results in an order dismissing that particular summons. That, of course, is not the situation here.
I think that construction must necessarily be right if one has regard to the consequence prescribed by the subrule, namely that if the Court is satisfied it is just to do so, it may allow such summons to be restored to the list and again brought on for hearing. In context it seems to me that must mean necessarily the summons or process in respect of which or by which the order is sought in Chambers, and which in the context of the rule is then dismissed.
In short, again, in my view that subrule does not assist the appellant here. It brings me then to Mr Aristei's next suggested basis of power upon which I could now set aside my earlier order, and he relies there on O 2 r 1(1) of the Rules of the Supreme Court. That provides in subrule (1) that:
"Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
The first thing that may be said about that is that there are two things which are being spoken of or referred to there. What is not to be nullified is the "proceedings, any step taken in them (sic: the proceedings) or any document, judgment or order therein". The "reason" being referred to is the failure to comply with the requirements of these Rules in whatever respect. So the question for present purposes, it seems to me, is whether or not the appellant's failure here to attend the hearing on 2 April can be characterised as a failure to comply with the requirements of the Rules.
As to that, Mr Aristei says that the relevant requirement is that which springs from O 59 r 4 and Form 77. That combination really simply prescribes the manner in which proceedings in chambers are to be initiated and the particularly relevant aspect upon which counsel for the appellant relies is the form or terms of Order 77 which is in the usual form for a Chamber summons and broadly recites, "Let all parties appear on such and such a date and at such and such a time before the Court." The argument then runs that failure of counsel to appear or attend on 2 April was a failure to comply with the requirement of the Form which is a requirement of the Rules.
Whilst I accept that the argument is ingenious (although that is probably not entirely the appropriate word), it does seem to me that it is straining the wording of the Rules to regard the terminology of the Form as a requirement of the Rules requiring counsel or the parties to attend.
I prefer the view that the summons is in effect no more than a notification that a particular date and time has been fixed by the Court for the hearing of the relevant application and that the parties or counsel who wish to be heard in respect of it should appear on that date and at that time to be heard.
I appreciate and acknowledge that the matter is perhaps arguable but it seems to me the preferable view is that which I have indicated, not least of all because the consequences of a party's failure to attend in accordance with such a summons are otherwise prescribed by the Rules and they include provisions such as those which give the party not in default the opportunity of applying to have the opposing party's case struck out or dismissed. So in that way the Rules provide for the consequences of non-attendance. As I say, however, it seems to me the point is arguable, but I would be disinclined to take the view that the argument advanced on behalf of the appellant is sufficiently cogent to justify me in these circumstances acting solely on the basis of it.
That brings me to the third head of suggested power and that is the inherent jurisdiction of the Court. I note that in that regard Mr Collins, who appears on behalf of the respondent, accepts that the court has inherent jurisdiction to set aside the order made on 2 April, but his submission is that this is not a case in which the jurisdiction should be exercised in favour of the appellant.
In that regard I think his submissions tended to go more to argument on the substantive issue of the application to dismiss, or alternatively the appellant's application for leave to prosecute the appeal, rather than simply to the question before me this afternoon which is whether or not the order previously made by me should be set aside.
The same may be said, I think, of Mr Collins' contention that it would be futile for me to set aside my order of 2 April because a rehearing of the application to dismiss would result in the same order being made.
So far then as the inherent jurisdiction of the Court is concerned, and bearing in mind in particular the respondent's concession in that regard, I remind myself that rules and forms of procedure are not ends of themselves but are means to an end, which is the attainment of justice; and here I am referring in particular to paragraph 1.0.4 of Seaman's "Civil Procedure".
I accept the position is as set out by the learned author in that paragraph and that in substance the true rule is that a Court may exercise its inherent powers in respect of matters regulated by statute or by Rules so long as it can do so without contravening them, the general position being that a judge cannot dispense with the requirements of the Rules unless the Rules themselves give the power to do so. One cannot rely upon inherent powers as a means of (as the learned author puts it) escaping from the necessity of ensuring that a condition required or imposed by the Rules is fulfilled.
In the present circumstances I am also mindful of the principle and philosophy underlying the decision of the High Court in Taylor v Taylor (1979) 143 CLR 1, in which the High Court emphasised the fundamental principle of natural justice that a party is entitled to be heard, and that if by some accident or mischance a party is deprived of that entitlement and no injustice to other parties is involved, then a Court has inherent jurisdiction to set aside an order, subject obviously to suitable terms if necessary.
In the present case it does seem to me, in light of the explanation offered and in light of the consequences to both parties were I either to set my earlier order aside or not do so respectively, that justice would best be served by me setting the order aside, notwithstanding that it has been perfected to the extent that the formal order has been extracted and served.
It seems to me that considerations of prejudice to the respective parties and to the fair hearing of the matter on its merits militate in favour of granting the present application, and I say that particularly noting that what is sought to be reinstated and reheard is not the appeal itself, but simply the respondent's application to dismiss the appeal for want of prosecution.
For me to set my earlier order aside would not result in any consequence other than the restoration of the status quo as it was following the appearance of the parties before Miller J and the institution of the proceedings under s 150B of the Mining Act, at which point both that application and the respondent's application to dismiss for want of prosecution were on foot and falling to be decided.

It may be, as Mr Collins has submitted, that on the rehearing of the application to dismiss, the same order might be made, namely, the appeal may be dismissed for want of prosecution, but that I think is not something which I should decide now. The important point in relation to it, I consider, is that made by Mr Aristei: the appellant was not afforded the opportunity of being heard on the merits of that application, and that was through no fault on the part of the appellant.
I appreciate the submissions made by Mr Collins that the non-appearance on that date was really the straw that broke the camel's back, and that it was the combination of a course of conduct over a long period of time. There is some force in that submission but, nonetheless, as I have indicated, the salient point I think is that the appellant did not have the opportunity to put its case on the application to dismiss on the merits.
Having said that, although I accept that there was misunderstanding or confusion as to the adjournment on the part of counsel then appearing for the appellant, I also consider that the order made by Miller J was in fact quite clear. It was expressed in terms of adjourning the matter for 7 days. Mr Aristei himself said that if Miller J had expressed it in terms that he was adjourning it to 2 April the appellant would have had no argument to put. In effect, in my view, that is exactly what his Honour did.
In those circumstances, although I am prepared for these reasons to accede to the application by the appellant to set aside the order I made on 2 April, I consider that neither party should be penalised financially by reason of the default on the part of the appellant's solicitors, and I would accordingly propose to order that the plaintiff's solicitors pay the costs of both parties occasioned by that default.
The order accordingly will be that the appellant's application to set aside the order made by me on 2 April 2001 dismissing the appeal for want of prosecution be granted, and I propose further to order that the respondent's application to dismiss the appeal for want of prosecution be heard together with the appellant's application under s 150(b) of the Mining Act.