Maddock v CRENDON Machinery - [2003] WADC 235

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MADDOCK -v- CRENDON MACHINERY [2003] WADC 235

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 1 OCTOBER 2003

DELIVERED : 3 NOVEMBER 2003

FILE NO/S: CIV 477 of 2003

BETWEEN: RAYMOND GRAEME MADDOCK
Plaintiff
AND
CRENDON MACHINERY
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia O 12, r 7 O 20, r 19(1) and O 16, r 1 - Application to strike out statement of claim - Application for summary judgment in the absence of appearance.

Legislation:

Workers' Compensations and Rehabilitation Act 1981

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Mr P L Haynes
Defendant: Mr J S MacDonald

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: McAuliffe Williams & Partners

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

Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission (2002) 192 ALR 561
De San Miguel v Ryanex Pty Ltd [2003] WADC 147

Case(s) also cited:

Castro v Murray (1875) LR 10 Exch 213
Dalgety Australia Ltd & Anor v De Vahl Rubin & Ors; unreported; SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Ltd [1949] 1 All ER 219
Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Haasy v Town & Country Demolition Pty Ltd [2002] WADC 81
Howden v "Truth" and "Sportsman" Ltd (1937) 58 CLR 416
Kimberley Downs Pty Ltd & Ors v Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Lawrance v Norreys [1890] 15 App Cas 210
Pancontinental Mining Ltd v Posgold Investments Pty Ltd and Others (1994) 121 ALR 405; 13 ACSR 117
Re Monger; Ex parte Woodford [1999] WASC 273
Republic of Peru v Peruvian Guano Company [1887] 36 Ch D 489
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152

DEPUTY REGISTRAR HARMAN: The defendant has brought an application seeking an order that the statement of claim be struck out on the grounds that it discloses no reasonable cause of action, that it is scandalous, frivolous or vexatious or otherwise an abuse of process. Alternatively it seeks judgment.
In bringing the application the defendant purports to utilise the mechanism provided by O 12, r 7. It provides:
"A defendant to an action may at any time before entering an appearance therein, serve notice of motion to set aside the writ or service of the writ, or notice of the writ on him or discharging any order giving leave to serve the writ or notice on him out of the jurisdiction."
Insofar as the defendant seeks judgment the application does not fall within the scope of the rule.
There is a further procedural impediment to the defendant’s success. Order 16, r 1(1) provides:
"Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment ..."
The defendant has not filed an appearance. Accordingly it has not met a condition upon which the enlivenment of jurisdiction depends. Order 16 does not otherwise allow for judgment. By filing an appearance a defendant would take the significant step of acknowledging the jurisdiction of the Court. Prior to filing an appearance a defendant's opportunity for seeking to avail itself of the processes of the Court is limited to the scope provided by O 12, r 7.
Before I leave that part of the application, regardless of the procedural impediments the defendant would confront a significant substantive obstacle in the form of the onus. It is worth recording that wherever the evidentiary onus may lie; ultimately it is for the applicant to satisfy the Court that it is appropriate for it to respond as the applicant proposes. As I understand the defendant's submission, the action should now be determined so that it could rely upon the plaintiff's present failure to satisfy a statutory provision that is expressed to have application at the point when an action is determined.
It is difficult to discern that there could be any proper basis to confer such a tactical advantage. In my opinion so to do would be utterly at odds with the proper role of a court.
As to the balance of the application, the defendant seeks to draw upon O 20, r 19(1) which is as follows:
"The Court may at any stage of the proceedings, subject to paragraph (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that –
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
and may order the action be stayed or dismissed or judgment be entered accordingly, as the case may be."
Paragraph (3) is as follows:
"Subject to paragraph (4) an application for an order under paragraph (1) must –
(a)be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers;
(b)..."
Paragraph (4) of the Rule has been repealed.
Although it does not emerge from the papers on the file, at the hearing of the application I was informed by the plaintiff that the writ had not been served on the defendant. Be that as it may, par 3 does not condition jurisdiction, it simply expresses the period during which recourse to it would be had in the usual circumstances. The filing of an appearance is not expressed to be a condition of any exercise of jurisdiction under r 19. The critical issue is whether recourse may be had to r 19 on an application under O 12, r 7.
In my opinion an application would only qualify as a motion to set aside the writ if brought on the basis that the writ was a nullity. On its terms the application is not within the scope of O 12, r 7.
Be that as it may, dealing with the terms of the application the onus would be on the defendant. Although by the application the attack is mounted on the statement of claim, there is no statement of claim. I assume that the defendant intended to refer to the indorsement.
Nothing was addressed to me during the course of submissions that would suggest that it was scandalous, frivolous or vexatious.
The question of whether the indorsement discloses a reasonable cause of action can only be determined within its perimeter. It is as follows:
"The plaintiff claims damages from the defendant by reason of injuries suffered by him in an accident which occurred during the course of his employment on or about the 16^th day of April 1997, which accident was due to the negligence, breach of statutory duty and/or breach of contract of employment of the defendant and/or its servants or agents."
The defendant did not take issue with the sufficiency of the indorsement as an indorsement. As I understand the defendant's position, the only basis for suggesting that there is any doubt as to its sufficiency are the provisions of Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act1981, in particular s 93E(3), which is as follows:
"Damages can only be awarded if –
(a)it is agreed or determined that the degree of disability is not less than 30 per cent ...
(b)the worker has a significant disability ..."
As I indicated to the defendant during the course of the hearing, as it is expressed the prohibition does not engage with an action at the time of the issue of the writ but rather when the action is in the process of being determined. The failure to obtain a determination for the purposes of the provision prior to commencing an action or perhaps to mention any such determination in an indorsement is not a measure by which the sufficiency of an indorsement ought to be judged. Even if the prohibition was expressed to operate at an earlier time, in the absence of further legislative interference the satisfaction of the terms of any exemption would not be properly considered to be an integral part of the cause such that it ought to be expressed as part of an indorsement.
In short the provision does not add to or detract from what constitutes a cause of action. There being no impediment to bringing an action on a cause it is difficult to understand that there could be any basis to consider that the provision has any relevance to the manner of expression of an indorsement.
As to whether the indorsement ought be struck out as an abuse of process, I was referred to a determination of Registrar Kingsley in De San Miguel v Ryanex Pty Ltd [2003] WADC 147. In that case the Registrar was able to conclude that the action either was or would be unsustainable. In striking out the action he relied upon the same statutory provision. The Registrar referred to sensible commercial reasons why that action should have proceeded no further. Whatever the reasons may have been I find them to be obscured by the Code.
In my opinion it would be wrong to conclude that either case management or any other considerations that relate to the orderly disposition of actions should be measured as being more significant than the right of a plaintiff to bring and have determined an action brought upon a cause. The Court has no significant interest in whether or not a file is "active". It is obliged to maintain its record of the action regardless. Otherwise there is no evidence from the party that carries the onus.
I accept that there is a prospect that for whatever reasons the plaintiff may not succeed in the action. That prospect presents risk for each party. I am not satisfied that the Court has a proper role in protecting a litigant from the results of folly. And there is no evidence from the party that carries the onus.
In choosing to express itself as it did, the legislature is properly taken to have understood that the process of entering judgment can be distinguished from the process of commencing an action. At the time that it enacted the prohibition it repealed a prohibition that was expressed to apply at the commencement of an action. In my opinion it would be wrong for the Court to effectively disengage the prohibition from the point at which it is expressed to operate in order to activate it at an earlier time. It is incomprehensible that it would do so to manufacture the ground to found an apprehension of abuse. Why the Court would be motivated to consider taking that course eludes me.
In Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission (2002) 192 ALR 561 at 565 the High Court recently recognised the "well settled" principle "that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect." In recent times it seems to have been the prevailing view in this jurisdiction that consideration of at least the qualification "necessary" is properly overlooked.
In my opinion in issuing the writ the plaintiff did not engage in any abuse of process. The plaintiff has taken no step beyond that point. Clearly the legislature intended that an action could be commenced in the absence of a determination by the Directorate.
In my opinion the application was inappropriately brought. Consideration of its substantive merits demonstrates that it ought properly fail.