Love v Griffiths
[2008] WASC 168
•7 AUGUST 2008
LOVE -v- GRIFFITHS [2008] WASC 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 168 | |
| 14/08/2008 | |||
| Case No: | CIV:2676/2001 | 7 AUGUST 2008 | |
| Coram: | MASTER SANDERSON | 7/08/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for removal of case from list refused | ||
| A | |||
| PDF Version |
| Parties: | ROSS MAITLAND LOVE JOHN ALEXANDER GRIFFITHS FRANK ARANGIO |
Catchwords: | Inactive cases list Application for removal Inadequate explanation for delay in progressing action Applicable principles |
Legislation: | Nil |
Case References: | Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JOHN ALEXANDER GRIFFITHS
First Defendant
FRANK ARANGIO
Second Defendant
Catchwords:
Inactive cases list - Application for removal - Inadequate explanation for delay in progressing action - Applicable principles
Legislation:
Nil
Result:
Application for removal of case from list refused
(Page 2)
Category: A
Representation:
Counsel:
Plaintiff : Ms C A Bahemia
First Defendant : Mr G P Butterfield
Second Defendant : Mr G P Butterfield
Solicitors:
Plaintiff : Carol Bahemia
First Defendant : Marks & Sands
Second Defendant : Marks & Sands
Case(s) referred to in judgment(s):
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
(Page 3)
1 MASTER SANDERSON: This was the plaintiff's application to have this matter removed from the Inactive Cases List (the List). The plaintiff's summons was filed 29 July 2008. It was first returned on 5 August. Counsel who appeared for the defendants sought to have the matter adjourned for hearing on 7 August. Counsel advised that he was acting as agent for interstate solicitors and those solicitors and the client wished to appear at the hearing. The six-month time limit applicable to cases in the List expired on 7 August. I indicated to the parties that I would hear the matter on 7 August and give a decision the same day. I duly heard the matter and at the conclusion of argument, I dismissed the application. I indicated I would publish reasons for doing so. These are those reasons.
2 In Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24, I set out the principles that, in my view, should govern an application to remove a case from the List. I said:
In my view, an application to be removed from the List should be granted provided that the party and its solicitors are serious about taking some steps in the proceedings …
…
… I should emphasise that an application for removal from the List should not be regarded as mechanical. Some evidence should be advanced to show both that the party and its solicitors are committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order. [9] - [11]
3 It will be apparent from those comments that it was not my intention to make removal from the List an unduly onerous undertaking. I specifically rejected the view advanced by counsel in that case that the same principles as apply on an application to strike out for want of prosecution should govern an application to be removed from the List, with the onus reversed so that it was for the plaintiff to show that those well established criteria were not satisfied. In my view, consistent with the underlying principle that case management is not an end in itself, there is simply no warrant to put unnecessary obstacles in the way of a litigant who wishes to have his case determined even if he has been somewhat tardy in the past. Of course, every case must depend on its merits and calls for an exercise of discretion - that discretion being exercised judicially.
4 The application in this case was supported by an affidavit of Carol Aisha Bahemia sworn 28 July 2008. Ms Bahemia is the solicitor for the plaintiff. The affidavit is short and I will quote it in full:
(Page 4)
- 1. I am the solicitor on the record for the plaintiff in this matter and have the conduct of the action on his behalf.
2. This action was commenced on 26 October 2001.
3. On 23 August 2007 Registrar Johnson ordered that the plaintiff achieve entry for trial by 24 September 2007 and on 8 November 2007 he ordered that the plaintiff achieve entry for trial by 20 December 2007.
4. The matter came before Registrar Johnson for directions on 7 February 2008 and the plaintiff had not then achieved entry for trial.
5. Registrar Johnson directed that the action be placed in the Inactive Cases List.
6. Since 7 February 2008 I have instructed Senior Counsel Mr Michael Corby SC to provide his advice on evidence, to review the statement of claim and to appear at trial.
7. I have had two conferences with Mr Corby SC in the interim and, as a consequence of issues identified by Mr Corby SC, I have spoken with the expert engaged by the Plaintiff in this matter, Mr Ken Adam.
8. I have met with the plaintiff with a view to finalising his proof of evidence.
9. Mr Corby SC will be in a position to finalise his advice on evidence when my further enquiries with Mr Adam have been completed.
10. In the circumstances, while the matter is not ready to be entered for trial, the Plaintiff has been actively engaged in instructing me and is committed to advancing the proceedings.
11. I swear this affidavit in support of the Plaintiff's application that the action be removed from the Inactive Cases List.
5 This affidavit is woefully inadequate. It does not explain the history of the action, the reasons why it has not progressed with some expedition, it gives no idea of how far advanced the preparation of the case might be, it gives no timetable for the finalisation of matters of evidence and it provides no timetable which would allow an assessment to be made as to when the case might be ready for trial. All of this in circumstances where the action was commenced in October 2001 - almost seven years ago.
(Page 5)
6 It is not really necessary to highlight the deficiencies in this affidavit - it speaks for itself. But reference to one paragraph of the affidavit might help illustrate the point I am making. In par 3, Ms Bahemia says that on 23 August 2007 Registrar Johnson ordered that the plaintiff achieve entry for trial by 24 September 2007. Registrar Johnson had been case managing this file. The fact that he made the order says at least two things. First, that he felt the matter had progressed far enough to make entry for trial by 24 September 2007 possible. Second, that the matter had gone on long enough to warrant such an order being made. There was no appeal against the registrar's decision. It can be assumed, then, that Ms Bahemia accepted that the decision was reasonable and that entry could be achieved. She does not suggest otherwise in the affidavit. Yet there is no explanation as to why entry was not achieved by 24 September. An order of the court was simply ignored. On 8 November 2007, Registrar Johnson again ordered that the matter be entered for trial, this time by 20 December 2007. That was almost three months after he had originally anticipated the entry. Once again, there is no explanation as to why the entry was not achieved, what problems might have been encountered by the plaintiff's solicitors in attempting to enter the matter for trial and why this second order was ignored.
7 And so it goes on. There is no explanation as to what came out of the conferences with senior counsel. It is not clear that the plaintiff's solicitor has a complete proof of evidence from the plaintiff. There is no indication as to what expert evidence was to be obtained from Mr Adam, whether he had been fully instructed and when his evidence was likely to be available.
8 In all of the circumstances, and taking the most benign view of the plaintiff's position, there was no justification to remove this matter from the List. Accordingly, I dismissed the application with costs.
6