Love v Griffith [No 2] - [2008] WASC 302

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LOVE -v- GRIFFITH [No 2] [2008] WASC 302

CORAM: MASTER SANDERSON

HEARD: 15 DECEMBER 2008

DELIVERED : 22 DECEMBER 2008

FILE NO/S: CIV 2676 of 2001

BETWEEN: ROSS MAITLAND LOVE
Plaintiff
AND
JOHN ALEXANDER GRIFFITH
First Defendant
FRANK ARANGIO
Second Defendant

Catchwords:

Practice and procedure - Matter dismissed after six months on Inactive Cases List - Application to make orders allowing matter to proceed - Earlier application to remove action from Inactive Cases List failed

Legislation:

Nil

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff:     Mr P G McGowan
First Defendant              :     Mr B De Buse
Second Defendant         :     Mr B De Buse

Solicitors:

Plaintiff:     Metaxas & Hager
First Defendant              :     Marsdens Law Group
Second Defendant         :     Marsdens Law Group

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

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Clairs Keeley (A Firm) v Treacy [2004] WASCA 277
Grigoriou v Nitsos [1999] WASCA 42
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Love v Griffiths [2008] WASC 168
Todd v Novotny [2000] WASC 308

MASTER SANDERSON: By chamber summons filed 2 October 2008, the plaintiff sought the following orders:
1.The time within which the plaintiff was ordered, on 8 November 2007, to achieve entry of this action for trial be extended to 7 days after the date of this order; and
2.The plaintiff pay the defendants' costs of this application.
This application follows on from an earlier application by the plaintiff to have the matter removed from the Inactive Cases List: Love v Griffiths [2008] WASC 168. The facts can be briefly stated. The action was commenced on 26 October 2001. On 23 August 2007, Registrar Johnson ordered that the plaintiff achieve entry for trial by 24 September 2007. On 8 November 2007, he ordered that the plaintiff achieve entry for trial by 20 December 2007. The matter came before Registrar Johnson for directions on 7 February 2008. The plaintiff had not then achieved entry for trial. Registrar Johnson directed that the action be placed on the Inactive Cases List.
On 29 July 2008, the plaintiff filed a summons seeking to have the matter removed from the Inactive Cases List. I heard that application on 7 August 2008 and dismissed it. As the six‑month time limit applicable to cases on the Inactive Cases List has now expired, the matter is 'taken to have been dismissed for want of prosecution': see O 29A r 21.
In support of the application, the plaintiff swore an affidavit dated 30 September 2008. In this comprehensive affidavit, he sets out the nature of the cause of action and the steps that he has taken to progress it. The history has been less than happy. Eight or more firms of solicitors have acted for the plaintiff at one time or another. Progress in the matter has been painfully slow. It is said that now, subject to some amendments being made to the statement of claim, the matter is ready for entry for trial.
The action itself concerns a claim for negligence or misleading and deceptive conduct on the part of the defendants in relation to advice given with respect to property owned by the plaintiff. The defendants were first engaged by the plaintiff in February 1992. The alleged negligence or misleading and deceptive conduct said to give rise to this claim occurred in 1994. If a trial were to take place, events which occurred more than 15 years ago would be the subject of the evidence led by the parties.
In Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86, I expressed the view that it was open to the court to extend the time for compliance with an order with the effect that a matter can be removed from the Inactive Cases List. The Karageorge case concerned a springing order. The case was placed on the Inactive Cases List when there was a failure to comply with that springing order within the specified time. Extending the time for compliance with the underlying order had the effect of removing the case from the Inactive Cases List.
In this case, there was no springing order. Registrar Johnson simply ordered that the matter be entered on to the Inactive Cases List.
What the plaintiff seeks to do by this summons is to enlarge time to comply with an order which did not result in the action being placed on the Inactive Cases List. This is a different case from the Karageorge case. It is not clear where in O 29A such a power is to be found. Under O 29A r 13, it is possible in exceptional cases to amend or cancel a case management direction. Case management directions are those directions which are a 'procedural direction for the purpose of leading to the efficient and timely disposal of the proceedings': see O 29A r 3(1). I very much doubt that an order entering a matter on to the Inactive Cases List is a case management direction. However, the point was not taken by counsel for the defendants and, for the purposes of this application, I am prepared to assume that there is power to remove the matter from the Inactive Cases List either by making the orders sought by the plaintiff in the chamber summons or otherwise.
By this application, the plaintiff effectively asks for a reconsideration of my earlier decision declining to remove the matter from the Inactive Cases List. There is nothing in the affidavit of the plaintiff which is new evidence in the sense that it could not have been tendered at the earlier application. No new fact has come to light and there has been no new development - all that has happened is that an affidavit, the like of which should have supported the earlier application, has now been prepared.
In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, McLelland J said:
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application (46).
This principle has been consistently applied Australia wide. From time to time, it has been reformulated in a slightly different fashion, but the underlying principle remains the same. In this court, it was considered and approved in Todd v Novotny [2000] WASC 308 and in Clairs Keeley (A Firm) v Treacy [2004] WASCA 277.
In my view, the principles in Brimaud put paid to the plaintiff's application in this case. The matter has been fully argued and, to my mind, finally determined. There is no new material available which could not have been put before the court on the application to have the matter removed from the Inactive Cases List. The respondents are entitled to conduct their affairs as though the action against them has come to an end. To hold otherwise would sanction re‑litigation of a determined issue.
In the Karageorge decision, I referred to the decision of the Full Court of this court in Grigoriou v Nitsos [1999] WASCA 42. That case confirmed that in granting an extension of time it was relevant to consider what steps had been taken by a party personally to advance the action. In part at least, the affidavit filed by the plaintiff in this matter addresses that issue. It certainly appears that in the month or so before the application was brought, the plaintiff was contacting his then solicitor on a regular basis to ensure that steps were taken to have the matter removed from the Inactive Cases List. That is a factor I have weighed in the balance and is in the plaintiff's favour. But against that is the overall conduct of proceedings. As I have mentioned, the matter was commenced in 2001 and it has progressed only slowly. While it is open to any litigant to change solicitors as and when they will, the frequent unexplained changes of solicitor in this case have doubtless slowed the progress of the matter. That is the responsibility of the plaintiff. This is not a case where the inactivity of a solicitor in the face of strong pressure from a party has been responsible for the delay in taking action. In my view, the evidence does not establish that the interests of justice require any extension of time.
I would dismiss the application with costs.