Ogbonna v CTI Logistics Pty Ltd
[2018] WADC 27
•20 FEBRUARY 2018
OGBONNA -v- CTI LOGISTICS PTY LTD [2018] WADC 27
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 27 | |
| Case No: | CIV:2595/2016 | 6 FEBRUARY 2018 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 20/02/18 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | CELESTINE OGBONNA CTI LOGISTICS PTY LTD NEIL RASPA |
Catchwords: | Application to remove from the Inactive Cases List Calculation of 12 months Dismissal for want of prosecution Procedural fairness |
Legislation: | District Court Rules 2005 r 44A, r 44D, r 44G Interpretation Act 1984 s 62 Rules of the Supreme Court 1971 O 59 r 5(1) |
Case References: | Rowe v Stoltze [2013] WASCA 92 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
CTI LOGISTICS PTY LTD
First Defendant
AND
NEIL RASPA
Second Defendant
Catchwords:
Application to remove from the Inactive Cases List - Calculation of 12 months - Dismissal for want of prosecution - Procedural fairness
Legislation:
District Court Rules 2005 r 44A, r 44D, r 44G
Interpretation Act 1984 s 62
Rules of the Supreme Court 1971 O 59 r 5(1)
Result:
Application dismissed
Representation:
Counsel:
Applicant : In person
First Defendant : Ms E Thuijs
Second Defendant : Ms E Thuijs
Solicitors:
Applicant : Not applicable
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Rowe v Stoltze [2013] WASCA 92
1 PRINCIPAL REGISTRAR MELVILLE: On 20 July 2016 the plaintiff issued a writ against the two defendants. By the District Court Rules 2005 (DCR) r 44A, it is provided:
If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the court orders otherwise.
2 Nothing was filed in the case until 20 July 2017 when the plaintiff filed an affidavit of the service of the writ.
3 This begs the question, at what time does 12 months elapse from the date the writ was filed? In this regard s 62 of the Interpretation Act 1984 provides:
(3) If a period indicated in a written law is of 2, 3 or more months, it shall be reckoned from the date on which it is to begin to the date numerically corresponding, less one, in the second, third, or other successive month thereafter or, if there is no such corresponding date, to the last day of the latter month.
For example: a period of 6 months beginning on 15 August ends on 14 February and a period of 6 months beginning on 30 or 31 August ends on 28 February (or 29 February in a leap year).
5 Once a case is on the Inactive Cases List it can only be removed by filing a Form 1 (Entry for trial) or by order of the court, neither of which events occurred before the 20 January 2018. By DCR r 44G the case was dismissed for want of prosecution just as the plaintiff was told it would be in the notice issued 20 July 2017.
6 The plaintiff was aware that the case was on the Inactive Cases List because on 17 January 2018 (three days before the case was to be dismissed) he applied by chamber summons to have the case removed from the Inactive Cases List. The chamber summons did not seek an abridgment of time for the hearing of the application and was listed for hearing on 6 February 2017.
7 When the matter came before the court on 6 February 2017, and notwithstanding by the stage the case had been dismissed, the plaintiff sought to pursue his application. His pursuit of this application reflects a misunderstanding of the DCR relating the management of cases before the District Court.
8 The plaintiff's continuance of his application was based as I understand it on three broad contentions being:
1. the application to remove the case from the Inactive Cases List was made before the case became inactive;
2. the dismissal of his case in circumstances where he had previously applied for orders the case be removed from the Inactive Cases List was the consequence of some prejudicial decisions based on the colour of his skin; and
3. that it was not appropriate to dismiss his case without the merits of his case having been decided.
The effect of the application for orders made before dismissal
9 There is a clear distinction between applying for orders on the one hand and obtaining orders on the other. The application for orders is by way of chamber summons which must be served on other affected parties. Those parties have the right to be heard and have a right to be given a reasonable time in which to prepare their defence or any submissions they may wish to make in opposition to the application. For this reason the rules require a chamber summons to be served at least seven days before the return day of the summons unless the court allows a shorter period of service. No application was received from the plaintiff for an abridgment of the service period.
10 In circumstances where the plaintiff has advised that the case will be dismissed if it remains on the Inactive Cases List for six continuous months, it is incumbent upon the plaintiff to make an application to the court in time for that application to be decided before the six months has expired. The fact that an application is made before the six months has expired does not have the effect of removing the case from the Inactive Cases List.
Discrimination on the grounds of race
11 The plaintiff has suggested that the dismissal of his case was linked to his African background and complains that the court took his money, being the filing fee associated with the summons, and then listed it for hearing at a time after which his case was dismissed. However the dismissal of his case has come about by the operation of the rules. The issue of the notices is generated by the courts computerized system and the algorithms applied therein, which apply to every case conducted in this court.
12 It was the plaintiff's responsibility to have his application brought on for hearing before it was dismissed for want of prosecution. In the absence of the plaintiff making an issue of the looming deadline the administrative staff in the registry would be expected to process the summons in the usual way, which is to list it for hearing as soon as possible having regard to:
(a) the available dates for listing non urgent matters before a registrar; and
(b) the need to list in a manner that will enable the summons to be served on the other parties not less than seven days before the return day of the summons as required by the Rules of the Supreme Court1971 O 59 r 5(1).
Natural justice
13 It is likely that this is the first time the plaintiff has ever encountered a situation where a case, being his case in particular, has been dismissed for want of prosecution. However, this is not new to the court. The Court of Appeal has addressed similar issues in Rowe v Stoltze [2013] WASCA 92. Like this case, in Rowe v Stoltze the District Court had issued a notice that the action had been placed on the Inactive Cases List. Six months later the action was dismissed for want of prosecution.
14 In Rowe v Stoltze the appellant applied for the case to be reinstated arguing, among other things, that the dismissal had no effect as the appellant had a right to have her case heard and determined on its merits, a right that could not be taken away by the words of r 44G. It was argued that r 44G was invalid because it denied a party a right to have this or her case heard and determined on the merits thereby abrogating the rules of procedural fairness. In this regard the Court of Appeal said:
50 As I understood the appellants' submissions, two contentions were advanced under this rubric. The first was more implied than express. It was contended, in effect, that the rule-making power in s 88(1) should not be construed as authorising the making of rules which abrogate the rules of procedural fairness. Rule 44G (1), it was submitted, is ultra vires because it denies a party a right to have their case heard and determined on the merits and thereby abrogates the rules of procedural fairness. The underlying proposition, as I understood it, was that s 88(1) did not, by the clear language which would be necessary, authorise rules of court which abrogated the rules of procedural fairness. The contention that r 44G (1) abrogated the rules of procedural fairness was based on the submission that 'everyone has a right to bring an action and have it determined on its merits'.
51 That latter submission greatly overstates the position. It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
52 Part 4 subdiv 3(6) falls to be considered in that context. In considering whether a party has had a reasonable opportunity to have their case heard it is important to bear in mind that a case is put on the Inactive Cases List only where:
(a) no document has been filed in a case for 12 months (r 44A);
(b) a plaintiff has failed to enter the action for trial following service on the plaintiff of a Form 2: r 44;
(c) on a summons to show cause a registrar is not satisfied the action has been conducted in a timely way, and so orders: r 44B (4); or
(d) as a result of a failure to comply with a springing order which so provides: r 44C (1).
53 In other words, a case will only be put on the Inactive Cases List where the case has not been prosecuted with reasonable expedition.
54 Moreover, r 44G (1) only takes effect after a further six months elapses following express notice to the parties that the action will be dismissed if nothing is done to remove it from the Inactive Cases List within that time. In that six-month period any party can apply to have it removed and the court may remove it if satisfied that the case will thenceforth be conducted in a timely way or for other good reason: r 44F(3).
55 A plaintiff who does not seek to have the case removed or, having applied, is unable to persuade the court that there is any good reason why it should be removed, cannot be said to have been deprived of a reasonable opportunity to have their case heard. A failure to have an action removed is consistent only with a failure on the part of the plaintiff to evince any real interest or will to pursue the action in an appropriate manner. In those circumstances there is no reason why in the administration of its affairs the court should devote scarce resources to keep the action afloat. The contention that pt 4 div 3(6), or r 44G (1) in particular, deprives a plaintiff of a reasonable opportunity to have their case heard cannot be sustained.
15 The potential for hardship associated with this process has been acknowledged by the DCR which by DCR r 44G(5) has empowered the court to set aside the dismissal where exceptional circumstances exist. This requires consideration of criteria that is different to that which applies to an application to remove a case from the inactive cases list and is likely to require different evidence. Any application must be by way of chamber summons on notice to the other affected parties.
16 For these reasons the plaintiff's application for an order the case be removed from the Inactive Cases List has been overtaken by events and should be dismissed.