| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : POLGLAZE NOMINEES PTY LTD -v- ROOKE [2002] WADC 91 CORAM : NISBET DCJ HEARD : 22 APRIL 2002 DELIVERED : Delivered Extemporaneously on 22 APRIL 2002 typed from tape and edited by Trial Judge FILE NO/S : CIV 1633 of 2001 BETWEEN : POLGLAZE NOMINEES PTY LTD (ACN 008 786 892) Plaintiff
AND
HOWARD WILLIAM ROOKE
Defendant
Catchwords: Practice and procedure - Application to strike out statement of claim - Limitation defence - Whether plaintiff must plead to bring itself within a limitation period - Appeal from Deputy Registrar's decision to strike out statement of claim
Legislation: Fair Trading Act 1987 (WA)
Trade Practices Act 1974 (Commonwealth)
(Page 2)
Result: Appeal allowed Representation:
Counsel:
Plaintiff : Mr R H B Pringle QC
Defendant : Mr J Eastoe
Solicitors:
Plaintiff : Granich Partners
Defendant : Jonathan Eastoe
Case(s) referred to in judgment(s):
Harris v Western Australian Exim Corporation (1994) 56 FCR 1
MAM Mortgages Ltd (In Liq) v Cameron Bros (a firm) [2000] 2 Qd R 515
Ronex Properties v John Laing Construction Ltd [1983] 1 QB 398
Western Australia v Wardley Australia Ltd (1991) 30 FCR 245
Western Australia v Wardley Australia Ltd (1992) 175 CLR 514
Case(s) also cited:
Nil
(Page 3)
1 NISBET DCJ: The plaintiff brought an action against the defendant for a money sum of $67,558.44 and in the alternative, damages for breach of contract, and in the second alternative for damages under s 79 of the Fair Trading Act 1987 (WA) or alternatively an order under s 77 of that Act, varying the agreement pleaded in the statement of claim so as to make the sum of $67,558.44 repayable as at 7 April 1999 a date said to be the date of the defendant's refusal to make the payment.
2 The defendant applied by summons (later amended) to strike out the statement of claim, at least insofar as it pleaded or purported to plead a cause of action pursuant to the Fair Trading Act on the ground that on its face the action was statute barred because actions under the Fair Trading Act, the state equivalent of the Trade Practices Act 1974 (Commonwealth) must be commenced within three years of the cause of action accruing. 3 That application succeeded before a Deputy Registrar of this Court who held that in its terms the statement of claim did not plead a cause of action that was commenced within the three year period required by the Fair Trading Act. The learned Deputy Registrar gave his reasons for acceding to the defendant's application on 23 November last year. 4 Subsequently the plaintiff sought to persuade the learned Deputy Registrar that he was preparing to or had indeed purported to act in an apprehension of the relevant provision of the Fair Trading Act as being substantive in character as opposed to procedural, meaning thereby that in order to come within its provisions, a plaintiff seeking to avail itself of a claim under that legislation had to plead the fact that the cause of action arose within the limitation period stated within the Act in question rather than treating it as a procedural statute which did not bar the right but barred the remedy, the right remaining in existence. The plaintiff failed to persuade the learned Deputy Registrar and he struck out pars 12 and 13 of the statement of claim and par 3 of the prayer for relief. 5 In relation to this issue, the learned Deputy Registrar had perhaps misapprehended the nature of the important distinction that is to be drawn between statutes of limitation that are procedural in nature and those which are substantive. Ordinarily speaking, statutes of limitation are regarded as procedural in that they bar the remedy and not the right, and a plaintiff does not have to plead that the action has been commenced within time. 6 It has been held in relation to the Trade Practices Act that the relevant provision in the Trade Practices Act (s 82(2)) is a procedural
(Page 4)
enactment and not a substantive enactment; that is to say, whilst the right might persist beyond the three year period provided for its limitation, no remedy can be obtained because it is outside that period: Western Australia v Wardley Australia Ltd (1991) 30 FCR 245; Western Australia v Wardley Australia Ltd (1992) 175 CLR 514; Harris v Western Australian Exim Corporation (1994) 56 FCR 1; MAM Mortgages Ltd (In Liq) v Cameron Bros (a firm) [2000] 2 Qd R 515. 7 This is an important distinction in an application to strike out a statement of claim on the ground that it fails to plead facts that bring the action within three years of the date of issue of the writ. The defendant's contentions would mean that a defendant would in all cases of this nature require a plaintiff to plead a cause of action that came within a statute of limitation or a limitation provision within the statute, without any consideration of whether the relevant provision would be relied upon or not by the defendant; in other words, it would require a plaintiff to plead in anticipation of the defence, a move that is always regarded as being inappropriate for a pleader of a cause of action: Pleadings: Principles and Practice, Jacob and Goldrein (Sweet & Maxwell 1990) at 107. 8 In fact one of the primary rules of pleading a statement of claim is that one does not plead in anticipation of a defence, one pleads out the cause of action and it seems to me that if these principles had been considered by the learned Deputy Registrar, we would not be in the position that we are now. 9 As we know, an appeal from a decision of a Registrar of this Court is an application de novo and I do not have to be persuaded that he made an error of law. I have to decide the matter myself on first principles. In this case the defendant's application to strike out pars 12 and 13 of the amended statement of claim and par 3 of the prayer for relief are made on two grounds, firstly that they disclose no reasonable cause of action in that the plaintiff failed to plead facts bringing it within the three year limitation period, to which I have already adverted, and secondly that those paragraphs may prejudice, embarrass or delay the fair trial of the action. 10 If I can deal firstly with the first ground, that is to say that the statement of claim discloses no reasonable cause of action, and reiterate what I have already said, namely, where a limitation defence is to be relied upon by a defendant, it is not for the plaintiff to plead in anticipation of that defence. The plaintiff pleads out the cause of action
(Page 5)
which it says exists against a defendant and leaves it to the defendant to plead any defence that may be available. 11 If the defendant pleads a limitation defence it is then for the plaintiff to reply and to answer that defence. There are at least three substantive answers to a limitation defence that could be made in situations such as these, being waiver, estoppel, and that damage did not accrue until a later date. So if a defendant was to choose to avail itself of what it thought was a limitation defence, a plaintiff could reply by pleading that the defendant had waived the benefit of the statute or alternatively a defendant had by conduct deprived itself of the right of relying upon the statute or the limitation point in question, for example. 12 That has not been done in this case and in my opinion the relevant parts of the statement of claim and the prayer for relief should not have been struck out on that ground. 13 I turn now to consider the second leg of the defendant's summons, that is that it might prejudice, embarrass or delay the fair trial of the action. True it is that circumstances can arise whereby the position is so plain on the face of the course of dealings between the parties, exemplified by evidence put into court appropriately by an affidavit of the parties or someone with knowledge of or carriage of the action as the case may be, that the point is very plain, that there is a limitation defence; there is no way of getting around it; there is no available opportunity for a plaintiff to plead waiver or estoppel or any other reply that might meet a properly made out defence based upon a limitation statute. 14 The reason for that is obvious. Where the future conduct of the action would be pointless or fruitless it is in everyone's interest to bring it to an end immediately so that additional costs are not incurred by the parties firstly, but importantly in a case of that type, that the court's limited resources are not wasted by being involved with hopeless cases. In this case there is no evidence of the type that would fit within that description and indeed within that which is envisaged in authorities such as in Wardley Australia Ltd v State of Western Australia (supra) or in Ronex Properties v John Laing Construction Ltd [1983] 1 QB 398 where Donaldson LJ said at 405: "Where it is thought to be clear there is a defence under the Limitation Acts, the defendant can either plead that defence and seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support
(Page 6)
his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed." 15 Here there is no evidence of the type described by Donaldson LJ which would enable me to find that the further conduct of this action would prejudice, embarrass or delay the fair trial of the action. 16 Rather I think the position is actually quite the opposite. Short cuts such as those which are taken here rarely in my experience achieve their stated aim. 17 The defendant should properly plead out its limitation defence. The plaintiff can then reply. The defendant could then apply for summary judgment supported by an affidavit and then have, if the case is as clear as the defendant then made out, summary judgment against the plaintiff. 18 That would not involve any great deal of extra expense. It may involve a little bit of extra time but not as much time as being taken up with this appeal, and the result would have been, may I dare to suggest, more certain. So for those reasons, briefly stated as they are, I propose to allow the appeal, restore the plaintiff's pleading, give leave to the defendant to file an amended defence within 14 days and require thereafter the plaintiff to plead further as required by the rules.
|