Pileggi & Pileggi v A & a FIMOGNARI - [1999] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FRANK PILEGGI and ROZALIND MARY PILEGGI -v- A & A FIMOGNARI [1999] WADC 144

CORAM: LA JACKSON DCJ

HEARD: 3 DECEMBER 1999

DELIVERED : 9 DECEMBER 1999

FILE NO/S: CIVO 124 of 1997

BETWEEN: FRANK PILEGGI and ROZALIND MARY PILEGGI
Plaintiffs
AND
A & A FIMOGNARI
Defendant

Catchwords:

Practice and procedure - Application to strike out action not commenced in accordance with the rules dismissed.

Legislation:

Builders' Registration Act 1939

Home Building Contracts Act 1991, ss33 and 23(2)

Result:

Defendant's application to strike out the plaintiffs' claim dismissed.

Representation:

Counsel:

Plaintiffs: Mr A J Aristei
Defendant: Mr R A Leclezio

Solicitors:

Plaintiffs: B W Duckham & Co
Defendant: Gibson & Gibson

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

About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1996) 17 WAR 309
Harkness v Bells Asbestos & Engineering Ltd [1967] 2 QB 729

Case(s) also cited:

Nil

LA JACKSON DCJ: This is an application by the defendant to dismiss the plaintiffs' claim.
At all material times the plaintiffs were the owners of a property at Maida Vale. By a building contract entered into between the plaintiffs and the defendant in or about 1989 the defendant contracted to do the brickwork for a dwelling house being constructed on the plaintiffs' property. That work was completed about mid 1990. The plaintiffs' claim is that in or about 1993 considerable fretting of the mortar in the brickwork was noticed and a complaint was made to the defendant. It appears the work was not rectified and eventually a complaint was made by the plaintiffs to the Building Disputes Committee. The Building Disputes Committee is set up pursuant to the Builders' Registration Act 1939. It exercises powers pursuant to that Act and to the Home Building Contracts Act 1991. That latter Act came into operation on 4 April 1992. Section 33 of the Home Building Contracts Act provides:
"A provision of this Act does not apply to any contract entered into before the commencement of that provision."
Section 23(2) provides:
"Where a matter that a Court has jurisdiction to determine is before the Disputes Committee that Committee may order that the matter be transferred to and determined by that Court."
During the hearing before the Committee the question of whether the Committee had jurisdiction to deal with it, it having arisen out of a contract entered into before the coming into operation of the Home Building Contracts Act was raised. In addition, it appeared that if there was a fault in the mortar work it might have been due to poor quality cement rather than poor workmanship on behalf of the defendant. The defendant wished to joint the cement manufacturer. The Committee has no jurisdiction to deal with a dispute between a builder and a cement manufacturer. The Committee therefore decided to refer the matter to the District Court. Although it appeared both parties agreed with that proposition, it was left to the plaintiffs to make application. That was done and on 8 July 1987 the matter was referred to the District Court.
By its own motion the Court listed the matter for a directions hearing on 5 September 1997. On that date directions were given as to the filing of the statement of claim, the filing of a defence and the giving of discovery. Pursuant to that direction a statement of claim was filed on 26 September 1997 and a defence on 4 November 1997.
On 16 February 1998 the plaintiffs filed a chamber summons seeking summary judgment It was heard on 16 April 1999 and was dismissed. During the hearing of that chamber summons the issue arose as to whether the Committee had acted in accordance with its jurisdiction in referring the matter to the District Court. Notwithstanding that issue having arisen, the proceedings continued. On 12 June, further directions were given including a direction for an amendment to the defence which was in due course filed. On 16 July 1998 the defendant filed an affidavit of discovery of documents. On 20 August 1998 a certificate of discovery was filed by the plaintiffs.
On 18 June 1999 the defendant filed the summons the subject of this decision.
The power to transfer a matter to the District Court by the Committee arises as a result of the power conferred by the Home Building Contracts Act 1991. That Act expressly applies only to contracts entered into after the date upon which it came into operation. This was not such a contract. Although the plaintiffs did not concede the point, it was not seriously disputed that the Committee was beyond power by so transferring the matter.
The defendant argues that the Court has no power to deal with this matter because the reference to it was invalid. It argues that the matter cannot be rectified either pursuant to O2 of the Supreme Court Rules or pursuant to any implied powers the Court has. Indeed the defendant argues that the action should be struck out pursuant to the Court's powers in O16 or O20 or pursuant to the Court's powers to prevent abuse of its own procedures.
The plaintiffs argue the Court has power pursuant to O2 to rectify the situation.
There has been considerable delay by the defendant in bringing this application. Since it first came to light it has continued to deal with it as though it was a valid action. It has not sought to amend the defence to plead the Court has no power to deal with the matter. In the circumstances, if the Court has power then, in my opinion, that power should be exercised in favour of the plaintiffs and the matter retained within the Court.
The issue is therefore whether the Court has power pursuant to O2 of the Supreme Court Rules. O2, r1 provides:
"1 (1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein."
(2)Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed."
Clearly the reference by the Committee to the Court is not an irregularity which could be cured. It was something done without power and the reference of the dispute to the Court was invalid.
But the subject matter of the dispute, namely an action for breach of contract or for tort arising out of a building contract is something within the jurisdiction of the Court. Neither the Builders' Registration Act nor the Home Building Contracts Act purports to provide an exclusive jurisdiction upon the Committee to deal with such matters. What it does is to provide a relatively informal and prompt and inexpensive way in which building disputes can be resolved. It does not exclude the jurisdiction of the Courts from dealing with such issues.
The first document of substance filed in the Court was the statement of claim. That document fully outlined the parties, the causes of action and the particulars thereof. It was a document which would commonly either be annexed to a writ of summons or be filed after the entry of an appearance to a writ of summons with an indorsement of claim upon it. Is the absence of a writ of summons as an originating document an irregularity? O4, r1 provides:
"1Subject to the provision of any Act and of these Rules -
(a)every action in the Court must be commenced by writ;
(b)civil proceedings between parties to be heard in chambers must be commenced by originating summons.
(c)All other civil proceedings must be commenced by originating motion."
The meaning of "must" depends on the context. In Stroud's Judicial Dictionary 5th ed the following is said:
"The direction that a complete specification of a patent 'must end with a distinct statement of the invention claimed' is directory only, and the absence of such statement does not void the patent (Vickers v Siddell 15 App Cas 496)."
In Butterworth's Words and Phrases Legally Defined the following entry is to be found:
"Section 56 of the Justices Act 1902‑1986 (WA) requires, with certain immaterial exceptions that the summons must be served on the defendant personally. 'Must' is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice. It is not merely directory. Posner v Collector for Interstate Destitute Persons (Victoria) (1947) 17 CLR 461 at 490 per Williams J."
The word "shall", more commonly used when a statutory command is peremptory, has not been used.
The opening words of O2, r1 "Where in beginning or purporting to begin any proceedings" are, I think instructive. Proceedings are begun pursuant to O4 by a writ of summons, an originating summons or an originating motion. Presumably any other document does not begin proceedings but "purports" to do so. In this case the reference by the Committee to this Court could not have constituted anything that began the proceedings. Pursuant to the order of the Registrar the document that purported to do so was the statement of claim. It was, of course, ordered on the mistaken view that the dispute between the parties had been validly transferred to this Court. In Harkness v Bells Asbestos & Engineering Ltd [1967] 2 QB 729 the Court of Appeal was dealing with a situation in which a workman suffering from asbestosis needed to obtain leave to proceed outside the limitation period. His solicitor filed an affidavit in support of such an application but no originating motion or summons. A District Registrar purported to make an order on the basis of the affidavit. This was not a valid application and there was no originating document to bring the matter validly before the Court. Lord Denning MR at 735 said (of O2, r1):
"It is said that this rule does not cover this case, for two reasons. First, it is said that at the time of the Registrar's order, there were no 'proceedings'; because no writ had been issued. So the rule, it was said, did not apply. I think this is far too narrow an interpretation. This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the Court, however informal, is a 'proceeding'. There were 'proceedings' in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with a Registrar."
That decision is quoted with approval in Seaman, Civil Proceedings, Western Australia. In my view Lord Denning's generous approach is appropriate. There is no injustice to the defendant in permitting the matter to proceed in this Court. Indeed the defendant has, notwithstanding knowledge of the point, continued. Such continuance constitutes a waiver. A waiver can of course only apply where the Court would otherwise have jurisdiction to deal with the matter and would not be applicable should either the Builders Registration Act or the Home Building Contracts Act give the Committee exclusive jurisdiction (see About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1996) 17 WAR 309. But they do not.
It was argued that the application had been brought under the wrong rule and that the delay had not been satisfactorily explained. In view of my decision it is unnecessary for me to deal with such issues.
For these reasons the summons to dismiss the plaintiffs' claim is dismissed.