Numan's Group Pty Ltd v Anyco Pty Ltd

[2006] WADC 19

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   NUMAN'S GROUP PTY LTD -v- ANYCO PTY LTD & ORS [2006] WADC 19

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   17 FEBRUARY 2006

DELIVERED          :   22 FEBRUARY 2006

FILE NO/S:   CIV 1123 of 2005

BETWEEN:   NUMAN'S GROUP PTY LTD

Plaintiff

AND

ANYCO PTY LTD
First Defendant

ANTHONY JOHN RHODES
Third Defendant

AUDAX INTERNATIONAL PTY LTD
Second Defendant

CLIVE RICHARD WILSON
First Third Party

NMS PTY LTD
Second Third Party

WESTGOLD INVESTMENTS PTY LTD
Third Third Party

Catchwords:

Practice - Practice under the District Court Rules 2005 - Application under r 45(3) to be excused from entering the action for trial - Evidence - Onus

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff:     Mr S N Davey

First Defendant             :     Mr M A Lilly

Third Defendant           :     Mr M A Lilly

Second Defendant         :     Mr M A Lilly

First Third Party           :     Mr S N Davey

Second Third Party       :     Mr S N Davey

Third Third Party          :     No Appearance

Solicitors:

Plaintiff:     Gibson Lyons

First Defendant             :     Jackson McDonald

Third Defendant           :     Jackson McDonald

Second Defendant         :     Jackson McDonald

First Third Party           :     Gibson Lyons

Second Third Party       :     Gibson Lyons

Third Third Party          :     Gordons Barristers

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

The State of Queensland & Anor v J L Holdings Pty Limited 189 CLR 146

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN:  I heard the application the subject of these reasons and reserved my determination.  On 20 February 2006 the result and a preliminary version of the reasons was forwarded to the parties.  These reasons are intended by me to stand as the reasons for decision.

2. In The State of Queensland & Anor v J L Holdings Pty Limited 189 CLR 146 the High Court of Australia expressed its view of the significance of case management considerations in the context in which they emerge.

3. The plaintiff has applied to be excused from entering the action for trial until further order.  I infer from those terms that in the event of the applicant's success in the application, if at some future time the court was predisposed to order or direct that the action be entered for trial that it would comply.

4. The evidence in support of the application is of the plaintiff's solicitor.  He deposes that shortly after 26 October 2005 the parties agreed that prior to incurring the expense of amending the pleadings they would attempt informal conciliation. 

5. At par 3 he continues:-

   "On 22 November 2005 the parties met with a view to settling this matter.  As a result of that meeting, some further documents where (sic) requested by the Defendant's solicitor, such documents being sent to the Defendant's solicitor on or about 16 December 2005 by way of informal discovery.  Further discussions have taken place.  The parties have agreed that they will continue to attempt to settle this matter and not take steps to progress the litigation of this matter until the settlement negotiations have been exhausted."

6. On 9 January 2006 a notice issued from the registry specifying the plaintiff's default in entering the action for trial and expressing that the action would become inactive unless that default was remedied prior to 25 January 2006.  The application reveals that the action was not entered for trial within that time.  The rules provide that the plaintiff can now only enter the action with leave and that since 25 January 2006, due to the plaintiff's default it has been open to the defendant to seek to have the action dismissed.

7. The defendants brought no evidence but opposed the application.  I could speculate as to the defendants' intentions.  The only certainty is that if they sought judgment they would confront a similar onus to that presented to the plaintiff on this application.  That is, to persuade the court that it would be appropriate to make the order.  It also seems to me that in either application the High Court would suggest that the fact that the plaintiff was in default and the consequence of that default are of no great moment. 

8. The terms of the application provide no certainty that the action would be entered for trial.  The plaintiff does not give any undertaking to do so.  I infer that it would simply seek to invoke the status that the case is no longer inactive.  My understanding is that it would be appropriate to do so if the plaintiff's failure to enter the action was excusable and that a determination was made that it ought be excused.  Of itself the fact that the plaintiff has made an application provides no justification for the result sought.

9. The defendants submitted that the evidence did not excuse the plaintiff's default.  I understood that the submission engaged not only with the rule which speaks to past default but also what in the context of an application of this nature is sensibly considered as to the future.

10. In my opinion it is difficult to avoid an assessment of the application that would accord with the defendants' submission.  The evidence is fairly general in its terms and conveys little more than a present intention not to advance the litigation.  In coming to the conclusion that the application be dismissed I do not consider that I have elevated case management considerations above the lowly status that they warrant, simply that on the application the plaintiff has not persuaded me that it is appropriate to excuse its failure to enter the action for trial.  For what it is worth I would add the comment that the result may be of no great moment.

11. The applicant being unsuccessful in an application made as a consequence of its default it follows that the defendants are entitled to their costs.