Lawrence Business Management Pty Ltd v FAMLONGA - [2006] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LAWRENCE BUSINESS MANAGEMENT PTY LTD -v- FAMLONGA [2006] WADC 25

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 14 FEBRUARY 2006

DELIVERED : 1 MARCH 2006

FILE NO/S: CIV 1322 of 2005

BETWEEN: LAWRENCE BUSINESS MANAGEMENT PTY LTD
Plaintiff
AND
BRIAN J FAMLONGA
Defendant

Catchwords:

Practice - Practice under the District Court Rules 2005 - Entry for trial - Application to remove action from inactive list

Legislation:

District Court Rules 2005

Rules of the Supreme Court 1971

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Mr C Touyz

Solicitors:

Plaintiff: Ahern & Associates
Defendant: Hammond King Touyz

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

The State of Queensland & Anor v JL Holdings Pty Limited [1996 – 1997] 189 CLR 146

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's failure to enter the action for trial in accordance with the timetable established under the District Court Rules 2005 brought the result that the Registry forwarded to the parties a notice of default in accordance with r 38. That notice was as follows:
"The plaintiff has not entered this action for trial as required. Unless the plaintiff enters this action for trial on or before 15 November 2005 this action will become inactive."
It is common ground that the notice was not complied with and accordingly the action became inactive. Rule 45 specifies the consequences of a case becoming inactive as follows:
(2)The plaintiff must not file a Form 1 to list the case for trial or any other document (other than an application under subrule (3)) without the leave of the Court.
(3)Within 21 days after the date specified in a Form 2, the plaintiff must apply for leave to list the case for trial or to be excused from doing so.
(4)If –
(a)no application is made under subrule (3): or
(b)on an application made under subrule (3), leave is refused or the plaintiff is not excused,
a party that is not in default may apply for judgment in that party's favour to be entered without a trial.
(5)If the Court grants leave on an application made under subrule (3) and is satisfied that there is no reason for the case to be inactive, it must order that the case is no longer inactive.
By application filed on 21 December 2005 the plaintiff sought an order that:
"Leave be given to file an application for further and better discovery and to list this matter for trial upon completion of necessary interlocutory steps."
It was filed outside of the time limit expressed in r 45(3). Upon the hearing of the application the plaintiff sought to overcome that default by seeking an extension of time under O 3 r 5 of the Rules of the Supreme Court 1971. In accordance with r 5(2), the court may extend a period of time within in which a person is required to perform any act even where the application for extension is not made until after the expiration of the period. It is my appreciation that there was no evidence put in support of that application and that it was made simply to remove the whatever impact breach of r 45(3) may have. According to r 45(4) that breach enabled the defendant to bring an application along the lines contemplated by r 45(4), however no such application was made. The result of the application before me will determine whether it would remain open to the defendant to do so. On any such application the defendant would carry the onus of persuading the court that it was appropriate to award him judgement. Considering the context in which the application to extend time is made, the fact that the defendant had not taken advantage of that opportunity and there being no evidence of any adverse impact of refusing to extend time on either party it seems to me that the result should turn upon consideration of the substantive issues raised by the application.
It transpired that the substantive application for further and better discovery was not advanced at the hearing of the application. To the extent that the application countenances other interlocutory applications, no particular prospect was canvassed upon the hearing. It was my appreciation of the plaintiff's submissions that it proposed to list the case for trial at some unspecified future time after the hearing of the foreshadowed application for further and better discovery.
In order to determine the application I perceive it is appropriate to first consider the processes enlivened by r 44 and r 45.
Prior to the introduction of the District Court Rules 2005 the process of entry for trial had been coopted for the purposes of the courts case management regime as a marker of progress in an action. Under that regime failure to enter an action for trial in accordance with a timetable would result in the parties being summonsed to court. The plaintiff's default would then be considered.
Such a timetable founds the default process established under r 44 and r 45. The fact that default in entering an action for trial automatically generates adverse consequences for a plaintiff allows for the perception that the former and current regimes are congruent and would be likely to produce similar results.
One significant feature of the current regime is that it restores the certificate of readiness that had disappeared from District Court practice during the period of the former regime and specifies its effect. Under the current regime an action may not be entered for trial absent such certification. Another significant feature of the operation of the current regime is that in the event of default in entering an action for trial it is left to the parties to apply for any consequential order. If either party choses to apply under r 45 it would be for that party to discharge the onus. The discretion provided to the court under that rule is not expressed to be limited and would draw into consideration the caution expressed by the High Court of Australia in The State of Queensland & Anor v JL Holdings Pty Limited [1996 – 1997] 189 CLR 146.
In this case the applicant has characterised the application as being for leave to list the case for trial however in my opinion it is seeking to be excused from making an application for leave to so list. The application indicates that reason for so excusing the plaintiff would be found in at least one outstanding interlocutory issue that it would seek to ventilate.
It emerged during the course of hearing the application that the plaintiff had read r 45(3) literally. In effect that prior to making an application for further and better discovery it was necessary to first obtain leave. It is my appreciation that in similar contexts in which an application requires a grant of leave it is considered appropriate to seek leave upon the hearing of the substantive application. The alternative approach would carry with it unsatisfactory results, delay and expense. In this case that approach would allow for the prospect that the plaintiff be excused from seeking leave to enter the action for trial upon no more than part of the evidence and part of the case that it would bring to justify the court ordering further discovery. I am unable to either make an assessment of the case that the applicant puts for further and better discovery or come to any conclusion upon it. That brings me to the point of considering whether the applicant's approach to the task set by the rule was reasonable. The fact that there appears to be a practice in this jurisdiction to grant leave to an applicant to undertake a particular action without any more than a broad understanding of what it is that is proposed is of no significance. If the respondent to such an application for leave is content that it is granted on that basis of course I would have no difficulty in granting leave but it would wear any adverse consequence. In this instance the application was opposed. The court could not properly countenance action being taken for which leave was required without being satisfied both as to what was proposed and how it was justified. At the very least the reason would be that the respondent is entitled to be given the opportunity to make effective submissions in opposing the application. I might add that it was evidently the respondent's appreciation that the applicant had actually presented its case for the substantive relief sought. At the point that the plaintiff clarified its position the respondent was in the process of demonstrating the insufficiency of the applicant's case. Returning to the practice that I have identified, I understand that it is also considered that the rules require a party after some point in the process of litigation to seek leave to make an application for leave to apply for a substantive order. The rules may suggest that result but if for no reason other than common sense, the issue of whether leave should be given could not be so divisible. Ultimately it is my conclusion that insofar as the application seeks leave to seek further and better discovery that it is incompetent. In light of the practice to which I have referred that determination may seem to be a harsh result. The important consideration is that it is the appropriate result: practice unsupported by principle is no more than that.
That determination leaves for consideration the prospect that the excuse for not having made an application for leave to enter the action for trial is the prospect that the plaintiff would bring a competent application for further and better discovery. In my opinion the only proper resolution of that prospect is to recognise that if the applicant is unsuccessful in the application that it may seek to bring a new application.
There is also the prospect that otherwise the case has not been got up for trial. That prospect is not advanced on the evidence. In its former solicitor's letter dated 8 November 2005 it was envisaged that extra time was required before the action was entered for trial but there is nothing more than that. Although the specified period of extra time has now passed I acknowledge that it was envisaged that the discovery now characterised as outstanding would have been provided. I would add that it was also contemplated that inspection would also occur within that period. I was informed by the respondent on the hearing of the application (at approximately the conclusion of the period) that the plaintiff had not yet undertaken inspection. Ultimately it is not for the court to speculate as to how close the applicant's solicitor may be to certifying that the process of getting up case for trial has been concluded. As I previously indicated, an application under r 45(3) is voluntarily made and the applicant carries the onus. The only proper inferences open in circumstances where an evidentiary onus is not addressed in such a context are adverse to the applicant.
Returning to the significant differences between the current and former regimes there is scope for the perception that the court intended to benefit defendants. That perception would be built not only upon the impediment to an action being entered for trial or interlocutory applications being made but also the more attractive benefit that may emerge upon a defendant applying for the relief specified in r 45. In my opinion it is appropriate to conclude that in establishing the current regime the court intended that the onus upon any plaintiff in an application under r 45(3) would not lightly be discharged.
At the hearing of the application the defendant submitted that the explanation given for default associated with Mr Wells departure from the plaintiff's solicitors office does not explain the default. The evidence is somewhat equivocal but it appears to be the case that Mr Wells did not leave the plaintiff's solicitors office until after the last date for entry for trial. In response the plaintiff contended that Mr Wells's departure had generated some turmoil in the plaintiff's solicitor's office however that submission is not supported by any evidence.
Ultimately the defendant contended that there was no sufficient evidence to explain the fact that the action had not been entered for trial. I can see no alternative than to dismiss the application.