Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd
[2016] WADC 33
•18 MARCH 2016
MAMMOTH NOMINEES PTY LTD -v- GREG ROWE PTY LTD [2016] WADC 33
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 33 | |
| Case No: | APP:67/2015 | 1 FEBRUARY 2016 | |
| Coram: | O'NEAL DCJ | 18/03/16 | |
| PERTH | |||
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | MAMMOTH NOMINEES PTY LTD GREG ROWE PTY LTD DALESIDE HOLDINGS PTY LTD |
Catchwords: | Appeal from Magistrates Court Application to remove a matter from Inactive Cases List Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 pt 16A |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hall v Hall [No 2] [2011] WASC 110 Lashansky v Legal Practice Board [No 2] [2010] WASC 159 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GREG ROWE PTY LTD
First Respondent
DALESIDE HOLDINGS PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE RIDLEY
File No : PER GCLM 6905 of 2013
Catchwords:
Appeal from Magistrates Court - Application to remove a matter from Inactive Cases List - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 pt 16A
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr J Birman
First Respondent : Ms W F Gillan
Second Respondent : No appearance
Solicitors:
Appellant : Birman & Ride
First Respondent : Rowe Bristol Lawyers
Second Respondent : Not applicable
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hall v Hall [No 2] [2011] WASC 110
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
1 O'NEAL DCJ: This is an appeal from a decision of a magistrate.
2 On 24 August 2015 the magistrate determined that an application to remove this matter from the Magistrates Court of Western Australia's Inactive Cases List should be determined on the papers, ex parte. The magistrate further ordered that the matter be removed from the Inactive Cases List and made certain programming and other incidental orders.
3 The appeal is brought on the grounds that first, it was a breach of natural justice to make the order ex parte and second, that the magistrate erred in law by making the order to remove the matter from the Inactive Cases List.
The litigation
4 The background to this litigation is set out in the affidavits of Adam Rowe and Daniel Messina filed in support of the application before the magistrate.
5 The appellant is the second defendant in the litigation in the Magistrates Court. The first respondent is the claimant. The second respondent here is the first defendant in the action. It has never filed a notice of intention to defend, and has not taken part in these proceedings.
6 The claimant carries on the business of providing town planning and project management services. In December 2005 the claimant entered into an agreement in writing to provide town planning services to the first defendant with respect to certain development property in Casuarina. The agreement entered into provided for the claimant to provide a range of services for agreed fees totalling about $138,000.
7 According to a proposed statement of claim annexed to Mr Rowe's affidavit, the claimant rendered services to the first defendant between March 2006 and 11 February 2008. Invoices totalling just over $153,000 were rendered for that work.
8 There is no evidence before me suggesting that there is any dispute about the validity of the arrangement entered into with the first defendant or the value of the services provided by the claimant.
9 I was told by counsel for the second defendant that while there is no common ownership or directors, there is a business relationship between the first and second defendants. So much also appears from the documents annexed to the affidavit of Mr Rowe.
10 One of those documents is a letter agreement dated 27 July 2009 from the claimant to the second defendant, to the attention of Mr Allen Caratti. The letter refers to meetings and emails exchanged between the parties and the receipt of a bank cheque from the second defendant in the amount of $50,000. The letter continues:
As agreed, we now prepare the following by way of record of our agreements and commitments to proceed with further with [sic] Town Planning and Project Management services for various jobs commissioned by your Office.
11 The draft statement of claim annexed to Mr Rowe's affidavit alleges that the properties that are the subject of this second agreement include properties the subject of the first agreement with the first defendant.
12 The first section of the letter sets out a number of 'jobs already commissioned and underway being invoiced in accordance with existing terms and conditions/agreed appointment'. A list of outstanding billings as at 31 May 2009 is detailed for a total of $216,680.
13 With respect to this outstanding balance, the letter records an agreement that a particular lot with an apparent value of $260,000 including GST would be transferred to the claimant and credited against the amount outstanding, leaving a credit balance of more than $43,000. The credit balance was to be allocated to ongoing work for the jobs described in this part.
14 The second part of the letter refers to three projects that have not had formal service agreements in place. An outstanding invoiced amount of $76,000 was agreed to be reduced to $50,000 plus GST. The claimant acknowledges receipt of the payment of $50,000 towards the account.
15 Part three of the letter refers to arrangements with respect to something called the 'Chelsea Village Project – Gucci Holdings Pty Ltd'. An outstanding account of nearly $36,000 is referred to and receipt of $27,500 is acknowledged as received from a Ms Tina Bazzo as part payment for the account, plus a further payment of $8,357.
16 Other sections of the letter refer to arrangements made for ongoing services to be provided for a residential development under construction, with payment in kind by the transfer of two lots selected by mutual agreement between the claimant and the second defendant.
17 The letter concludes with a promise from the claimant that it will not stop work on any job for non-payment of fees unless a fee is due and payable on that particular job. That is to say, work cannot stop on jobs other than the particular job for which a fee is outstanding and not paid in accordance with the agreed scope of works or various jobs. The letter is signed on behalf of the claimant and by Allen Caratti on behalf of the second defendant 'and associated and relevant entities as may be applicable in each project/job.'
18 The letter details commercial arrangements for work across three projects, with rather complicated provisions for accounting and payment in money and in kind.
19 The claim made against the first defendant is with respect to its failure to pay the outstanding accounts that it originally incurred. As described by Mr Rowe in his affidavit the claim against the second defendant is in respect of the letter agreement and the failure of the second defendant to transfer a block of land valued at $153,000 to the claimant in satisfaction of outstanding invoices. The claims against each defendant are obviously connected, but alternative, in the sense that it appears that the claimant can only have a remedy against one or the other.
20 It is apparent from Mr Rowe's affidavit that the relationship between the claimant and the second defendant ended badly. Mr Rowe's affidavit refers to some 12 ongoing matters by his firm for the claimant, including five involving the second defendant directly.
21 No material has been filed either in the application before the Magistrate's Court or on this appeal that suggests that there is no merit in the claims made by the claimant. That is, while nothing can be said now as to whether the claim will ultimately be successful, it is not suggested, and not apparent, that these are other than bona fide claims.
The history of this litigation
22 Again, for the purposes of describing the history of this particular litigation I rely on the affidavits of Mr Rowe and Mr Messina filed in the application before the magistrate.
23 In March 2013 Rowe Bristol Lawyers (RBL) received instructions from the claimant in respect of disputes with the first and second defendants for town planning works provided for developments in Casuarina. The total amount of money involved was $153,119. Mr Rowe's affidavit annexes copies of the invoices totalling that amount. Having regard to a credit that the claimant held in favour of the second defendant, the net amount outstanding was about $58,354.
24 Mr Rowe recognised that because of the age of at least one of the invoices, there was a possibility that by 13 April 2003 that invoice could become statute barred. That certainly appears to be the case with respect to the claim, or parts of the claim, as against the first defendant. In any event, because of this, Mr Rowe sought and received instructions to immediately commence proceedings for the recovery of the outstanding amounts. Both defendants were served by post with a copy of the general procedure claim on 12 April 2013.
25 On 1 May 2013 RBL received an email from a then director of the first defendant, a James Freemantle. The email advised that Mr Freemantle was going to be seeing Kevin Pollock (another director of the first defendant) at Wooroloo on 9 May. Mr Freemantle said, 'Pollock entered into this arrangement with Greg Rowe and Mammoth, hence I hope to understand exactly what it is about and hopefully attempt to resolve it before your client has to embark on the costly exercise of further legal action. Kind regards …'.
26 On 17 April 2013 the second defendant filed a notice of intention to defend. No notice was filed by the first defendant.
27 The rules of the Magistrates Court of Western Australia require that, once an action has been commenced and a defendant served with a general claim, a claimant must list the matter for pre-trial mediation within 14 days after the claimant receives a Notice of Intention to Defend. That did not occur.
28 After a considerable passage of time the parties received a notice from the Magistrates Court, advising that the case had been put on the Inactive Cases List, as no procedural step had been taken for 12 months. Among other things, the parties were advised that if no procedural step was taken to remove the matter from the Inactive Cases List, the matter would be dismissed on 26 August 2015 without further notice from the court.
29 I should note that while Mr Rowe's affidavit says that the matter was placed on the Inactive Cases List on 2 February 2015, the parties agree that that is incorrect. The correct date is 26 February 2015.
30 Nothing then occurred, no procedural step was taken in the case until the application was made that has resulted in this appeal.
31 The Magistrates Court (Civil Procedures) Rules 2005 (WA) include, as is now common in other civil jurisdictions, an Inactive Cases List. In the Magistrates Court (Civil Procedures) Rules the provision is found in pt 16A. These rules are similar in their terms to those found in div 5 of O 4A (previously O 29A r 18A and r 19) of the Rules of the Supreme Court 1971 and subdivision 6 of pt 4 of the District Court Rules 2005. While the exact terms vary from jurisdiction to jurisdiction, the intention of the rules appears the same and their effect is broadly similar.
32 The relevant provisions of the Magistrates Court (Civil Proceedings) Rules are:
95B. Case taken to be inactive
(1) If no procedural step is taken in a case for 12 months by a party to a case, the case is taken to be inactive unless the Court orders otherwise.
(2) A magistrate or registrar making an order or direction in exercise of a case management power may direct that, unless the order or direction in exercise of the case management power is complied with by a specified date, the case is to be taken to be inactive.
(3) Unless countermanded by a magistrate or registrar before it has effect, a direction made under subrule (2) has effect according to its terms.
(4) The Principal Registrar is to keep a list of cases taken to be inactive.
95C. Parties to be notified of case being on Inactive Cases List
(1) When a case is taken to be inactive under rule 95B, the Principal Registrar is to —
(a) put the case on the Inactive Cases List; and
(b) give all parties to the case written notice of —
(i) the fact that the case is on the Inactive Cases List and why; and
(ii) the effect of rule 95D.
(a) the fact that the case is on the Inactive Cases List and why; and
(b) the effect of rule 95D.
95D. Consequences of case being on Inactive Cases List
The only documents that may be lodged in the Court in relation to a case on the Inactive Cases List are —
(a) an application for an order under rule 95E; or
(b) a notice of discontinuance under rule 29; or
(c) a memorandum of consent under rule 53 to an order or judgment that would finally dispose of the case.
95E. Removing cases from Inactive Cases List
(1) A party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(2) The Court may order that a case be taken off the Inactive Cases List —
(a) if it is satisfied that the case will be conducted in a timely way; or
(b) for any other good reason.
(3) When the Court orders that a case be taken off the Inactive Cases List, it may make further orders for the conduct of the case in a timely way.
95F. Certain inactive cases taken to be dismissed
(1) A case that is on the Inactive Cases List for 6 continuous months is taken to be dismissed.
(2) If no procedural step is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to be dismissed.
(3) If the case is taken to be dismissed under subrule (1) or (2), the Principal Registrar is to take it off the Inactive Cases List.
(4) If a case is taken to have been dismissed under subrule (1) or (2) —
(a) a party to the case may apply for an order for costs; and
- (b) the Court may make an order for costs.
33 On 11 August 2015 the claimant filed an application asking for orders that:
1. The matter be removed from the Inactive Cases List.
2. Within 7 days the Claimant file and serve on the Second Defendant a Statement of Claim General Procedure in terms of annexure 'AGR10' to the Affidavit of Adam Graham Rowe sworn 10 August 2015.
3. The Claimant is to file a Request for Pre-Trial Conference within 28 days of this order.
34 The application was supported by the affidavit of Adam Rowe made 10 August 2015. There were 10 annexures to this, the last being a reasonably detailed draft statement of claim, articulating the basis of the claims against the first and second defendants and seeking an order for payment of the sum of $58,354, with interest and costs.
35 The story from this point is taken up in the affidavit of Daniel Messina sworn 13 August 2015. After the s 95E application was filed Mr Messina telephoned the civil registry of the Magistrates Court and spoke to a customer service officer named Danny. Mr Messina called to check on the application to make sure it that it had been listed for a hearing. 'Danny' advised him that 'the application has been received and has been listed for 7 September 2015 at 11.00 am'.
36 Mr Messina then said to Danny, 'This matter is on the Inactive Cases List and will be dismissed toward the end of August'. Danny responded (correctly), 'On 26 August 2015 it will be dismissed'. Mr Messina asked whether the hearing could be brought forward before 26 August. He deposes that Danny then told him, in effect, that he should 'send something through to the court via email' and he gave Mr Messina an email address. Mr Messina sent through an email, a copy of which is annexed to his affidavit. The email, directed to the principal registrar, sets out Mr Messina's concerns about the listing of the hearing at a time after 26 August 2015, the effect of which would be to make the application futile by the hearing date.
37 Mr Messina deposes that he then received a response from the acting supervisor of customer service in the Magistrates Court saying, that while the application date could not be brought forward because of a lack of availability on the part of the court, a further application should be lodged asking that the matter be dealt with ex parte. Mr Messina then arranged for that application to be made.
38 This application was accompanied by a letter dated 13 August 2013 directed to the principal registrar. As well as referring to the enclosed application and affidavit the letter noted that the matter was currently on the court's Inactive Cases List and would be dismissed automatically on 26 August 2015.
39 It appears that this material was filed on 17 August 2015.
40 On 24 August 2015 the Magistrates Court ordered as follows:
Upon the application of the claimant lodged on 17 August 2015 it is ordered that:
1. This application be determined on the papers ex parte.
2. The Claimant's Form 23 application dated 11 August 2015 in respect of programming orders, including that this matter be removed from the Inactive Cases List, be determined urgently on the papers ex parte.
3. The matter is removed from the Inactive Cases List.
4. Within seven days of service of this order, the claimant shall lodge and serve on the second defendant and statement of general procedure claim [sic] together with a copy of this order.
5. The Claimant shall lodge a request for a Pre-Trial Conference within 28 days of this order.
6. The hearing dated 7 September 2015 at 11.00 am is vacated.
7. There is no order as to costs.
41 From these orders the second defendant now appeals.
Grounds of appeal
42 I will set out the grounds of appeal in full:
The appellant appeals to the District Court against the above decision.
1. The Decision was made in breach of natural justice.
Particulars
- a. The Decision should not have been made ex parte.
b. The Appellant was not afforded an opportunity to present evidence or make submissions as to the orders sought by the First Respondent, and in particular as to:
i. whether the case should have been removed from the Inactive Cases List; and
ii. any consequential orders to be made under Rule 95E(3) of the Magistrates Court (Civil Proceedings) Rules 2005 (Act).
c. There were no reasons given for the Decision.
2. His Honour erred in law and in fact in exercising making an order pursuant to Rule 95E of the Act.
PARTICULARS
- a. There was no adequate explanation for the delay in:
i. prosecuting the matter; and
ii. making the application to remove the case from the inactive cases list.
b. His Honour should not have been satisfied that the case would be conducted in a timely way.
c. There was no good reason to remove the case from the Inactive Cases List.
43 The appeal to this court is supported by the affidavit of Mr Messina sworn 29 October 2015. This affidavit annexes his earlier affidavit and the affidavit of Mr Rowe which were before the Magistrates Court on the original application. The 29 October affidavit includes five paragraphs said to contain fresh or new evidence, to which the appellant objects. Paragraph four describes other ongoing litigation between the parties in greater detail than was included in Mr Rowe's original affidavit. Paragraphs 10, 11, 12, and 13 describe the steps taken by the first respondent since the matter was taken off the Inactive Cases List, and the respondent's adherence to the orders made by the Magistrates Court in that respect.
44 The nature of an appeal to this court is set out in s 50 of the District Court Rules:
50. Appeal, nature of
(1) An appeal to the Court must be by way of a reconsideration of the evidence that was before the primary court unless the parties agree otherwise.
(2) At the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the Court.
(3) The Court is not to grant such leave unless satisfied there are special grounds for doing so.
(4) This rule is subject to the written law that provides for the appeal to be made to the Court.
46 Although ground 1 is based on a breach of the rules of natural justice because of the fact that the first respondent's application was dealt with ex parte, the appellant did not rely on that ground at the hearing of the appeal.
47 In the course of the oral hearing of the appeal I raised with appellant's counsel the fact that the first respondent made the first application within the time when notice could be given for an inter parties hearing. The reason that that did not occur, was because of resource problems in the Magistrates Court. I suggested that the effect of ground 1 might be that the real question was which of the parties was to be denied a hearing.
48 To this counsel for the appellant responded,
… the real question is whether or not the magistrate should have made the orders that he made in any event on the material that was before him which is the same material that's before you and there is an opportunity to have that decision reviewed by way of rehearing now, so whatever injustice was done to the parties or at least to my client at that hearing is effectively remedied by the fact that we can now bring it here to have it dealt with on the basis where both sides can be heard.
So I think the real issue is whether on the evidence what was before his Honour below he should have made the order reinstating the matter to the active list … .
49 (In this case the magistrate was in fact a woman, and the references in the grounds of appeal and elsewhere should be, as the appellant acknowledges, to 'her Honour'.)
50 The appellant did not tender any affidavit evidence. I was asked to deal with the 'real issue' solely on the basis of the evidence before the magistrate, and without regard to the subsequent conduct of the first respondent or the more detailed information about other litigation between the parties.
51 In that context, in my view the appellant's objection is properly made and I would uphold it. Perhaps more correctly I would not grant leave for the evidence to be adduced because there are no special grounds for doing so. The expanded description in par 4 of Mr Messina's most recent affidavit of the other litigation between the parties has always been available and could have been put before the magistrate in the original proceedings. The evidence of the first respondent's conduct since the case was removed from the inactive list could not in my view be relevant to a decision that a case 'will be' conducted in a timely way if it is taken off the Inactive Cases List. I should also observe that if a litigant persuades the court to remove a matter from the Inactive Cases List, if they do not then take a procedural step in the six months after the date on which the case is ordered to be taken off the list, the case is taken to be dismissed: r 95F(2).
52 Against that background then I turn to the appellant's submission that the evidence which was before the magistrate was not and is not sufficient to satisfy the court that, if the matter were restored to the active list, it will be conducted in a timely way.
53 The appellant's submissions both with respect to the facts and the law were at times stated with a degree of absolutism that is not born out by the law generally or the facts here. In some respects the submissions seek to elevate factors relevant to the exercise of discretion in a particular case to rules of general application.
54 With respect to legal principles the appellant's submission was:
15. In considering whether to remove the case from the inactive list, the court should have regard to adequacy of the explanation from the non-compliance with the rules: Hall v Hall [2011] WASC 110 [69]; Lashansky v Legal Practice Board [No 2] [2010] WASC 159 [74], [46] and [53]. The time line in explanation proffered should be carefully examined (as Simmonds J did in Hall v Hall [No 2] at [71] – [119]).
16. An unexplained failure delay [sic] to apply to have a case removed from a list weighs significantly against the making of an order to remove the case from the list: Lashansky [80]; Hall v Hall [No 2] [2011] WASC 110 [61] - [62], [113].
55 With respect to the facts revealed by the affidavits, the appellant's submission is that the first respondent 'has not explained' the reasons for its delay in prosecuting the claim against the appellant. This submission is that 'there is no reason for the delay between 15 May 2013 and 20 August 2014' (par 16 of the affidavit of Adam Rowe sworn on 10 August 2015) and no evidence of what steps the first respondent took to obtain documents, or why such a task took over 15 months; the appellant's submissions refer to evidence in the affidavits of the first respondents' efforts to recover and assemble the records and documents that underlay its claims. The appellant's submission in this regard is that 'even if one accepts the evidence as to the search for documents this provides no justification for the delay …'. I should note that the evidence is effectively unchallenged and there is no reason that I should not accept it. The submission of the appellant however is that, in effect, if the first respondent's lawyers were satisfied there was an arguable case when they issued the general procedure claim then there should have been no impediment to immediately proceeding,
there is no evidence suggesting that the documents were required for the purpose of prosecuting the claim against the appellant; and
… at its highest it might be inferred that some of the documents may have been required for discovery purposes.
56 One argument put forward by the appellant, was that the authorities mandated that an applicant seeking removal from an Inactive Cases List had to provide a timetable to show how they intended to progress the matter if reinstated and 'there was nothing in Mr Rowe's affidavit about that'. This point can be dealt with shortly. A proposed timetable may provide a basis to infer that the applicant has put its mind to progressing a case and allow an inference that the matter will be conducted in a timely way in future. A party in that position would be wise to address that issue, but it is not mandatory. In any event, accepting that 'there is nothing in Mr Rowe's affidavit about that', the order sought by the claimant and granted by the magistrate imposed timetable requirements on the claimant.
57 The ultimate submission of the appellant is that 'There is no explanation for the delay in prosecuting the proceedings against the appellant or applying to remove the case from the Inactive Cases List between January 2015 and 10 August 2015', and that there was 'nothing' before the Magistrates Court to suggest that the case would be conducted in a timely way if reinstated.
58 Dealing first with the applicable law, care must be taken before allowing considerations relevant to the exercise of discretion in a particular case to harden into universal rules. To say that a factor is or may be relevant in the exercise of a discretion does not mean that a particular factor will be determinative in every such case.
59 The decision of Beech J in Lashansky v Legal Practice Board [No 2] [2010] WASC 159 is a good example of the way that the facts of a particular case may warrant particular weight being given to some factors relevant to the exercise of a discretion. Beech J carefully sets out the history and conduct of the self-represented litigant, Mr Lashansky. As his Honour notes, Mr Lashansky's main attack was on the question as to whether the action had been properly and validly put on the Inactive Cases List. As his Honour observed, the plaintiff made very few submissions directed to the question as to whether, assuming the action was validly put on the Inactive Cases List, an order should be made that it be removed from that list: [11]. The background described by Beech J does not suggest an underlying case of obvious or perhaps even arguable merit. To the contrary, some of the issues raised by the appellant in that case might reasonably be described as querulous.
60 In that case, Beech J described the nature and effect of the inactive cases regime in the Supreme Court by reference to decisions of the Master, [68] - [69]:
[68] The first defendant's submissions identified the following statements of principle from decisions of Master Sanderson on pt 4 of O 29A:
(a) courts have generally been sympathetic in the past to a tardy litigant and have been reluctant to grant a strikeout application, but the Inactive Cases List provisions bring a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable despatch, with reasonable significant and self-executing consequences for a tardy litigant: Lifelong Investments Pty Ltd … [12]; and
(b) an application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order: Swick …[11].
[69] I would respectfully adopt these statements.
61 Beech J made it plain that he was not setting out to describe principles of general application for every such case, (at [70]),
… I do not consider it necessary or appropriate to attempt to state the principles of pt 4 of O29A in a comprehensive and definitive way. Rather I propose to focus on those matters that seemed to me of significance for the disposition of this application.
62 His Honour then went on to summarise the scheme of pt 4 'in general terms', at [74] and [75]:
In exercising power under O 29A r 20(2) it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial.
In some of the observations of Master Sanderson on pt 4 of O 29A, there is reference to the High Court decision in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154 and the notion that 'case management is not an end in itself'. … These observations may require reconsideration in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. However, it is not necessary, for the purposes of dealing with this application, to give that question further attention.
63 The case of Hall v Hall, as the reasons of Simmonds J show, was another case where considerable argument was directed to the question as to whether in fact the matter was properly on the Inactive Cases List. In Hall the applicant went so far as to challenge the existence of the list. Given that the judge hearing the application for removal from the Inactive Cases List needs to be satisfied that, if removed from the List, the case will be conducted in a timely way, these kinds of strategies would seem to carry a high risk. It might be thought that confession, contrition and a promise of reform are better predictors of future progress, than an argument that black is white.
64 Simmonds J accepted that matters set out in the decision of Beech J in Lashansky, referred to above, 'for the most part' reflected principles for the exercise of the discretion that were appropriate, 'for my purposes': Hall [60].
65 Simmonds J also took up the question left open by Beech J in Lashansky, that is, the effect of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. Referring to the essential paragraphs encapsulating the ratio of that case, Simmonds J said:
Those paragraphs indicate to me that a party seeking relief from the effects of a failure to comply with a time limit provided for in the rules will in most cases be expected to provide an explanation for that non-compliance, to be weighed against the effects of the failure and case management considerations … In weighing any such explanation regard will be had to its adequacy.
66 Simmonds J observed that it can no longer be said that in the exercise of discretion in procedural matters that 'case management considerations will only in "extreme circumstances" outweigh an explanation, …': Hall [69]. The reading of the decisions of the plurality in Aon Risk Services show the correctness, with respect, of Simmonds J's observations that 'in most cases' a party seeking relief from non-compliance with time limits will be expected to provide an explanation for that non-compliance, and that explanation will, in most cases need to be weighed against the effects of the failure and case management considerations. Context is important, however.
67 It is important to recall that in Aon Risk Services, on the third day of a four week trial, in a proceeding that had been on foot for two years, the plaintiff asked for an adjournment and for leave to amend its statement of claim. The amendment would have added a substantial new claim against the defendant.
68 The particular rule of court that was a focus of arguments advanced to the High Court and central to some of its conclusions, r 21(2), was a rule of a kind that is familiar in Western Australia and many other common law jurisdictions. It provides:
(2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving
(a) the just resolution of the real issues in the proceedings; and
- (b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd (1993) 67 ALJR 841, 849; 116 ALR 625, 636, Toohey and Gaudron JJ explained that case management reflected (186): '[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard …' .
69 The decision in Aon Risk Services does not however stand for the narrow proposition that the introduction of case management rules means that the objective of a just outcome on the merits has become secondary to case management. The plurality said [98]:
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
70 Rule 13 of the Magistrates Court (Civil Proceedings) Act is not in the same terms as r 21 of the Court Procedure Rules 2006 (ACT) but it also invites a consideration of factors beyond those immediately affecting the parties to a particular piece of litigation:
(1) In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2) Ensuring that cases are dealt with justly includes ensuring —
(a) that cases are dealt with efficiently, economically and expeditiously; and
(b) so far as is practicable, that the parties are on an equal footing; and
(c) that the Court's judicial and administrative resources are used as efficiently as possible.
72 In this case, based on the affidavits that were before the Magistrates Court I would exercise the discretion given by r 95A(2) in the same way as the magistrate. That is, on the available material I am satisfied that if the case is taken off the Inactive Cases List the case will be conducted in a timely way. There are also other good reasons why the matter should be allowed to go ahead, although those 'other good reasons' might not be sufficient by themselves.
73 My reasons are as follows:
1. First the claim appears to be made bona fide and for a reasonable amount of money. It is a case that, one would have thought, the claimant would have every interest in pursuing and that it is not, for example, merely a nuisance claim or an ambit claim, or something with that appearance.
2. Second, the nature of the time limit that has been exceeded within the context of the rules means that this is not a case where substantial court resources have been wasted or will be wasted if the indulgence sought is granted. It is the opposite end of the extreme to the circumstances in Aon Risk Services.
3. Accepting as I do that the mere fact of delay can work prejudice in that, for example, memories may fade and records may be if not misplaced harder to find, there is no evidence of specific prejudice to the appellant here. Nor on the material available so far anyway is it likely to be a case where it is going to be resolved by oath on oath. It is, at this stage anyway a case that will likely turn on commercial records.
4. There is here an explanation for the delay. It cannot be said that it is significantly compelling because of its failure to descend into particulars, but it is an explanation. The action is a moderately complicated one, and it was commenced in haste because of a pending limitation with respect to at least one part of the underlying claim against the first defendant.
It comes against a background of other ongoing litigation between the parties. The claimant, while not previously paying full attention and devoting full resources to this litigation, now seems motivated to do so.
5. What the affidavit material filed for the first respondent does show however is that, whatever else might be said, the work has now been done to allow the matter to progress. Quite apart from the evidence with respect to the assembly and review of the documents that underlie the original claims against both defendants, (documents that it will in all probability be necessary to discover to both defendants), a statement of claim has now been prepared. That demonstrates an investment in time and effort from which an inference can be drawn that there is a commitment to now move the matter along.
6. By the orders sought, the claimant has committed itself to a timetable to progress the matter. That also provides a basis for an inference that the case will be conducted in a timely way if reinstated.
74 In the circumstances I am persuaded that the magistrate was correct to be persuaded that that case would be conducted in a timely way if taken off the Inactive Cases List.
75 Accordingly, the appeal is dismissed.
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