Mills v Lippiatt
[2019] WADC 99
•23 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MILLS -v- LIPPIATT [2019] WADC 99
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: 24 APRIL 2019
DELIVERED : 3 JULY 2019
PUBLISHED : 23 JULY 2019
FILE NO/S: CIV 4583 of 2016
BETWEEN: NICOLE LOUISE MILLS
Plaintiff
AND
DANIEL PETER LIPPIATT
First Defendant
DOLPHIN DIVE CENTRE FREMANTLE PTY LTD
Second Defendant
PEPPER GROUP LTD
Third Defendant
Catchwords:
Practice - Western Australia - Practice under the District Court Rules 2005 - Application to countermand entry for trial - Turns on its facts - Application for dismissal for want of prosecution
Legislation:
District Court Rules 2005
Result:
Applications dismissed
Representation:
Counsel:
| Plaintiff | : | Mr G P Bourhill |
| First Defendant | : | Mr B G Grubb |
| Second Defendant | : | Mr B G Grubb |
| Third Defendant | : | Ms B A Mangan |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal |
| First Defendant | : | Hager Grubb & Partners Lawyers |
| Second Defendant | : | Hager Grubb & Partners Lawyers |
| Third Defendant | : | K & L Gates |
Case(s) referred to in decision(s):
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27
DEPUTY REGISTRAR HARMAN:
By their application the first and second defendants seek to countermand the entry of the action for trial and to dismiss the action against them. Each part of the application is opposed by both the plaintiff and the third defendant. The applicants carry the onus of persuasion that in all of the circumstances it is appropriate to so determine.
The plaintiff's claims against the defendants are brought under the Fatal Accidents Act1959. The plaintiff's husband had been a passenger on a vessel travelling between Rottnest Island and Fremantle when he fell overboard and drowned.
The claim against the first defendant is as the skipper of the vessel; against the second defendant as the chartering party; and against the third defendant, as the host of a function of which the voyage was a part.
The third defendant was added to the action on 27 September 2017. I take it to be the case that prior to entering its appearance on 6 March 2018 the third defendant had been served with the amended writ. The amended writ bears the amended statement of claim.
On 18 July 2018 the action was placed on the inactive cases list. By that date the third defendant had not filed a defence.
On 19 December 2018 I dealt with the plaintiff's application to remove the action from the inactive cases list. The application was not opposed by the third defendant. As against the third defendant the action was removed from the inactive cases list. Because the plaintiff did not discharge the onus in the case that she put in the application against the first and second defendants, as against the first and second defendants the application was dismissed. I understand that the determination has been the subject of some debate however it cannot be said that it does not reflect the lack of contest by the third defendant and the failure of the plaintiff.
Rule 44G(1) of the District Court Rules2005 (WA) (DCR) is as follows:
A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
It is common ground that the period of time specified in r 44G(1) DCR would expire on 18 January 2019; that following the hearing on 19 December 2018 the plaintiff sought the first and second defendants' unavailability for a pre‑trial conference; that on 9 January 2019 the third defendant served its defence and a list of documents on the first and second defendants; and that on 16 January 2019 the plaintiff entered the action for trial.
Rule 37(3) DCR requires a party in entering an action for trial to provide the dates within 40 days after the date of the form, that the parties are not available to attend a pre‑trial conference. According to r 37(4) DCR a party proposing to enter an action for trial would at least 14 days before the date of entry for trial request of each other party the dates upon which they would be unavailable for a pre-trial conference; and if within seven days any party fails to respond then it is taken to be available for a pre-trial conference on any date.
The plaintiff's letter of 19 December 2018 notified the defendants of her intention to enter the action for trial as against the first and second defendants and to shorten the period of response to her request for their unavailable dates to one day. The letter suggests that the plaintiff proposed to enter the action for trial on 27 December 2018.
The first issue raised by the defendants' application to countermand the entry for trial is that prior to entering the action for trial the plaintiff had not made a valid request for the unavailable dates of the defendants. That submission is founded firstly on the basis that in the letter of 19 December 2018 the plaintiff had given notice that she would enter the action as against only the first and second defendants and secondly that by 19 December 2018 the third defendant had neither filed a defence nor provided discovery.
There is scope to speculate that the plaintiff may have considered that judgment would be available against the third defendant, however ultimately the answer to each of the defendants' submissions is that there is no basis upon which to consider or determine that a request for unavailable dates for a pre-trial conference is valid or otherwise. The request was made and within a reasonable period from the date of the request, the action was entered for trial.
According to the evidence of the first and second defendant's solicitor, the response to that letter was provided by email of 20 December 2018.
The first and second defendants may consider that the content of their response to the plaintiff was justified. On any reading of the email they could not establish that they either took issue with the proposal to shorten the time for response to the request or that they responded to the request. However the defendants view what transpired over the period from the date of their response to the date of entry for trial, the request had been made and their response stood as the failure to advise the plaintiff of their availability.
As a consequence, in the process of entering the action for trial on 16 January 2019 the plaintiff was entitled to assume that the defendants were available for a pre-trial conference on any day.
There is no evidence that would establish any significance in the fact that the defendants had no input into the dates of unavailability of the parties for a pre-trial conference specified on the form of entry for trial.
The first and second defendants next take issue with the certification given by the plaintiff on the form of entry for trial that each party has given discovery to and permitted inspection by each other party. The submissions of the defendants draw upon the deficiencies of the list of documents of the third defendant provided to them on 9 January 2019 and that the plaintiff knew that the defendants had not been permitted inspection of the third defendant's documents in accordance with the rules.
The context in which the third defendant provided its list to the defendants together with its content suggest that its provision had been in compliance with its obligation to give discovery upon the close of pleadings in the case brought against it by the plaintiff. It does not conform to the requirements expressed in O 26 of the Rules of the Supreme Court 1971 (WA) (RSC) because it is not provided in the prescribed form. Thereby it contained no statement for the purposes of pt 1B; pt 2A and pt 2B of Form 17. The list does not specify the availability of the listed documents for inspection.
Under pt 1B of Form 17 a party making disclosure would specify any objection to production of any document. Under pt 2A and pt 2B of Form 17 the party making disclosure would identify documents no longer in its possession custody or power and provide specified information relating to them.
I will preface my analysis of the issues presented for consideration by citing some commentary of the plurality of the High Court that appear in their reasons for decision in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, 370:
Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path that the proceedings take towards ultimate disposition. (On Civil Procedure (2000) pp 68, 78) This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.
In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party.
It is evident that in choosing to enter the action for trial the plaintiff chose to ignore the shortcomings of the third defendant's discovery. The context in which those choices were made extends beyond consideration of the imminent operation of r 44G(1) DCR to the issues revealed upon the close of pleadings and the content of the third defendant's list of documents.
Upon the close of pleadings in the case put against the third defendant, at all material times the deceased was a finance broker; the third defendant carried on business of money lending and the provision of financial services through finance brokers including the deceased; the second defendant carried on charter boat operations under the business name Swan River Boat Charters; the third defendant entered into a contract with Swan River Boat Charters for a seven hour cruise on the Ten Sixty Six to depart from the Sardine Jetty at 9.00 am on 31 October 2014 and arrive at Sardine Jetty at 4.00 pm on 31 October 2014; and that the deceased was one of the guests on board.
The third defendant goes beyond its admissions to plead that the charter contract was in writing constituted by email correspondence between the third defendant and employees or agents of Swan River Boat Charters between June 2014 and 12 August 2014, Swan River Boat Charters cancellation conditions and cruise policy and Swan River Boat Charters booking confirmation that is specified as being undated.
For the purposes of the application I consider that I need go no further than to say that the allegations of each party that are for trial are not likely to have been productive of or draw upon documents in the hands of the third defendant other than those that relate to the additional pleading of the third defendant to which I have just referred.
The third defendant's list specifies seven items. But for one category of documents and one document, the balance of the documents identified on the third defendant's list of documents appear to relate to the admission of the commercial relationship between the second and third defendants and the third defendant's additional pleading. The particular category is of unspecified invoices/receipts; and the document, the memorandum of an officer of the third defendant dated eight months after the material date.
Upon the close of pleadings in the plaintiffs case against the first and second defendants, at all material times the second defendant carried on charter boat operations under the business name Swan River Boat Charters; on or about 12 August 2014 pursuant to a contract for reward the second defendant hired the Ten Sixty Six to the third defendant for the purpose of a cruise to take place on 31 October 2014; that the charter contract is evidenced in writing by an undated booking confirmation document issued by the second defendant to the third defendant; that the terms of the charter contract provide a seven hour cruise on the vessel Ten Sixty Six for representatives and invitees of (the third defendant) to depart from Sardine Jetty, Fremantle at 9.00 am on 31 October 2014 to Rottnest Island and return to Sardine Jetty at 4.00 pm on the same day; that pursuant to the charter contract the Ten Sixty Six departed Sardine Jetty, Fremantle for the cruise with passengers and two crew members on board headed for Parakeet Bay, Rottnest Island; and the deceased was a passenger on both the outward and return trips.
It seems to me that the only real difference between the second and third defendants' pleadings of the relevant features of their relationship is the additional pleading of the third defendant to which I have referred.
The first and second defendants contend that the list of the third defendant being non-compliant could not justify the plaintiff's contention in the form of entry for trial that 'each party has given discovery to and permitted inspection by each other party' because the third defendant had failed to disclose whether there was any objection to inspection of the documents listed; had not specified that any document on the list was no longer in the possession custody or power of the third defendant; and had not specified the availability of the documents on the list for inspection.
As according to the close of pleadings, the relevant relationship between the third defendant and the second defendant was established by the contract of charter it would be unlikely that the defendants would have had any particular interest in prioritising inspection of the content of the third defendant's list. But for the documents that I have specified that appear on the third defendant's list, in all probability the balance of the third defendant's list is in common with content of the first and second defendants' list. It is not surprising that by her affidavit of 22 February 2019 the third defendant's solicitor deposes that the first and second defendants have not sought inspection. There is no useful evidence of the first and second defendant.
I suspect that having digested the defendants' response to her letter of 19 December 2018 the plaintiff considered that there may have been little point in continuing a conversation with the defendants around the subject of entry for trial. The critical consideration is that there is no requirement that a party would engage in such a process prior to filing an entry for trial. Taking a long chronological view of the process it has always been the party entering an action for trial that has expressed the assessment that a case is ready for trial. In more recent times the requirement for certification of particular matters has encumbered the process however it remains a step in an action that draws upon the perspective of the party that chooses to take that step.
The role established for the court by the application is to consider whether there is justification to intervene in the assessment of the plaintiff that on 16 January 2019 the action was ready to be entered for trial. The first and second defendants provide no useful evidence. Apart from the considerations that I have canvassed, I take it that the defendants would contend that prior to certifying as she did that it had been incumbent upon the plaintiff to consult with them as to whether they intended to undertake inspection.
Ultimately it is all very well for the first and second defendants to contest the sufficiency of the process of discovery and want of provision of inspection by the third defendant by reference to O 26 RSC however in the context of an application to countermand I would be more impressed with the defendants' submission had they sought to avail themselves of inspection of the documents that had been discovered by the third defendant.
Of all of the issues canvassed by the defendants in their application to countermand the entry for trial the only concern of any significance is that the defendants had insufficient time prior to the date of entry for trial to undertake the process of inspection.
Returning specifically to the choice made by the plaintiff to enter the action for trial, considering the result of the close of pleadings and the likelihood that the contractual documents identified would have issued from the second defendant, in my opinion it was not unreasonable for the plaintiff to do as she did. The certification of the plaintiff in the form of entry for trial made no commitment to the period during which inspection had been available. By entering the action for trial the plaintiff did not foreclose upon the prospect that the defendants could exercise the opportunity to inspect.
It follows that in my opinion there is no merit in the defendants' application to countermand the entry for trial.
According to the first and second defendants' submissions, dismissal of the action against them would be had under the narrow scope suggested by Bowden J in StrzeleckiHoldings Pty Ltd v Wiebel [2013] WADC 27 [57] as follows:
Both O 33 r 9(5) of the Rules of the Supreme Court 1971 and the court's inherent power to prevent abuses of the court provide the court with the power in the appropriate case, where, for example, a solicitor had knowingly certified a case was in all respects ready for trial, when he knew it was not and did so for the purposes of avoiding the case being dismissed for want of prosecution to countermand the entry for trial and order that it be treated as if it had never been made and that, in the appropriate case, may as a result of r 44G, result in the plaintiffs claim being dismissed for want of prosecution.
I have some difficulty with that proposition. Although case management may present reason to reflect upon the relationship between solicitor and client I have no doubt that ultimately the solicitor's interest in an action would be considered to be incidental when reflecting on the interest of the client.
The rule is part of a process by which the court implemented a strategy to move actions to an earlier trial than had been the case. That strategy is informed by the considerations outlined in O 1 r 4 RSC. The scope to perceive any benefit accruing to the defendant does not draw upon either the purpose of the relevant rules or any provision in those rules. Their operation does not generate an opportunity for a defendant to move for an order for dismissal of the action. Unlike a benefit that the court had intended would accrue to a party in the event of the operation of a springing order, it is incidental that upon the operation of r 44G (1) DCR a benefit would accrue to a defendant.
To labour that point, a springing order would not be made lightly but upon recognition that a prior order that had been justified had been disobeyed, that the other party had been prejudiced or otherwise disadvantaged and that the court considered that it ought to so enforce the prior order. Each of those features would be presented for consideration upon an application. In considering whether to grant such an order the court would reflect upon the capacity of the party to perform, the consequence of further default and the terms of default to be expressed in the order would call for some reflection.
I took from the defendants' submissions that their case in the application put along the lines that I have contemplated was that had the action not been entered for trial on 16 January 2019 then as against the first and second defendants, on 18 January 2019 it would have been dismissed by the operation of r 44G(1) DCR.
At the hearing the case put against the plaintiff was no more than had the plaintiff not entered the action for trial then two days later under r 44G(1) DCR it would have been deemed dismissed for want of prosecution. From the perspective of the court the reason for that result would be the failure of the plaintiff to remove the case from the inactive cases list. I accept that to the defendants the benefit that would accrue would be considered to transcend that purpose however from the perspective of the court, that a benefit would flow to the defendants is incidental. The purpose of the regime established by case management is not to accrue benefits to defendants but rather to bring matters to trial in a timely manner. If the defendants consider that they have been deprived of some benefit, it was illusory.
There is nothing in the fact that the case was put on the inactive cases list or that the defendants were successful on 19 December 2018 to justify consideration that they have any entitlement to have the action against them dismissed. They simply found themselves in a fortuitous position as a consequence of procedural activity.
There is no evidence before the court which would justify the conclusion that the plaintiff had been in contumelious default of an order of the court or that a period of inaction on the part of the plaintiff had resulted in detriment to the defendant sufficient to generate a real prospect that there would not be a fair trial of the matters in issue in the action. Accordingly at common law there is no justification for the court to determine that the action be dismissed for want of prosecution.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer24 JULY 2019
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